author: SPRIZZO, District Judge:

text:
    In the Matter of the Requested Extradition of Joseph Patrick Thomas DOHERTY by the GOVERNMENT OF the UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND.
    No. 83 Cr. Misc. 1.
    United States District Court, S.D. New York.
    Dec. 12, 1984.

      Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for petitioner; Thomas E. Moseley, Sp. Asst. U.S. Atty., New York City, of counsel.

      Somerstein & Pike, New York City, for respondent; Mary Boresz Pike, Stephen A. Somerstein, New York City, of counsel.
   SPRIZZO, District Judge:

Petitioner United States of America, acting on behalf of the United Kingdom of Great Britain and Northern Ireland, has requested the extradition to the United Kingdom of respondent Joseph Patrick Thomas Doherty. This request is made pursuant to 18 U.S.C. § 3184 and the Treaty of Extradition between the United States of America and the United Kingdom of Great Britain and Northern Ireland, 28 U.S.T. 227, T.I.A.S. No. 8468 (effective Jan. 21, 1977) (“the Treaty”). The Government of the United Kingdom seeks Doherty’s extradition on the basis of his conviction in Northern Ireland on June 12,1981 for murder, attempted murder, and illegal possession of firearms and ammunition, and for offenses allegedly committed in the course of his escape from H.M. Prison, Crumlin Road, Belfast, on June 10, 1981.

Doherty was arrested by the United States Immigration and Naturalization Service on June 18, 1983, in New York City. A provisional warrant of arrest was issued by Chief Judge Constance Baker Motley on June 27, 1983, pursuant to Article VIII of the Treaty. A formal request for extradition was filed in accordance with Article VII of the Treaty in the Southern District of New York on August 16, 1983. A hearing was held by the Court in March and April 1984 pursuant to 18 U.S.C. § 3184.

The facts of this case are not in substantial dispute. The incidents giving rise to the extradition request are briefly as follows. Respondent Doherty was a member of the provisional Irish Republican Army (“PIRA”). On May 2,1980, at the direction of the IRA, Doherty and three others embarked upon an operation “to engage and attack” a convoy of British soldiers. Transcript of Hearing (“Tr.”) at 631.

Doherty testified that he and his group took over a house at 371 Antrim Road in Belfast, and awaited a British Army convoy. Some three or four hours later, a car stopped in front of 371 Antrim Road and five men carrying machine guns emerged. These men, members of the Special Air Service of the British Army (“SAS”), and Doherty’s group fired shots at each other.

In the exchange of gunfire Captain Herbert Richard Westmacott, a British army captain, was shot and killed. Doherty was arrested, charged with the murder, among other offenses, and held in the Crumlin Road prison pending trial. On June 10, 1981, after the trial was completed but before any decision by the Court, Doherty escaped from the prison along with seven others. He was convicted in absentia on June 12, 1981 of murder, attempted murder, illegal possession of firearms and ammunition, and belonging to the Irish Republican Army, a proscribed organization.

Pursuant to Article IX of the Treaty, the Court must be satisfied that probable cause exists with respect to the offenses for which the requesting party seeks Doherty’s extradition. See Sidona v. Grant, 619 F.2d 167, 175 (2d Cir.1980). Petitioner produced a Certificate of Conviction for the offenses related to the death of Captain Westmacott, and a Warrant for Arrest of Doherty with respect to the escape from the Crumlin Road prison. See Request for Extradition. Doherty has not contested that he is, in fact, the person named in those documents, or named as respondent herein. Indeed, he testified as to his involvement in both the May 2, 1980 incident which resulted in the death of Captain Westmacott and the June 10, 1981 prison escape. See Tr. at 631-45, 654-67. Therefore, the Court finds that probable cause clearly exists.

Doherty asserts that the extradition request must be denied, however, pursuant to Article V(l)(c)(i) of the Treaty, which provides:

(1) Extradition shall not be granted if:
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(e)(i) the offense for which extradition is requested is regarded by the requested Party as one of a political character; ...

Petitioner denies that this so-called “political offense” exception to the Treaty is applicable in this case. The Court must determine, therefore, whether the offenses for which Doherty was convicted in relation to the May 2, 1980 incident, and those for which he is accused in connection with the escape from prison, are of a political character.

It seems clear, as the evidence established, that the centuries old hatreds and political divisions which were spawned by England’s conquest of Ireland in medieval times continue to resist any permanent resolution. Instead they have smoldered, sometimes during long periods of quescience, only to repeatedly erupt with tragic consequences. The offenses which give rise to this proceeding are but the latest chapters in that unending epic. See In Re Mackin, 80 Cr.Misc. 1, p. 54 at 49-74 (S.D. N.Y. Aug. 13, 1981), appeal dismissed, 668 F.2d 122 (2d Cir.1981).

The Provisional Irish Republican Army, of which respondent is a member, claims to be a contemporary protagonist in that ancient struggle. The evidence established that the Irish Republican Army and more particularly the PIRA, had for a time lost much public support and had indeed become dormant, while other groups, emulating the pattern of civil rights groups in this country, sought to achieve an amelioration of alleged political and economic deprivations by peaceful means. It is indeed unfortunate that those efforts failed, but fail they did. Perhaps, given the long standing enmities, anxieties, and fears that exist between the Unionists and Republicans in Ireland, it was too much to expect that they would succeed. Nevertheless it was the collapse of those peaceful efforts that ironically led to a resurgence of the PIRA.

On January 30, 1972 in Londonderry, what started out as a peaceful demonstration ended in a bloody confrontation in which 13 civilians were killed. See Tr. at 61, 133-34. Since British troops were regarded as at least in part responsible for that tragedy, their presence which had been initially welcomed, became a subject of increasing antipathy and concern. The result was a fresh impetus for the PIRA, and increasing support for those who would resolve Ireland’s political problems by violence.

Following the resurgence of the PIRA, the level of violence both by the PIRA and armed Loyalist groups continued to escalate in a continuing and seemingly inexorable series of events that between 1972 and 1979 claimed the lives of over 1,770 persons, nearly 1,300 of whom were civilian casualties, and injured hundreds of others. See Review of .the Operation of the Northern Ireland (Emergency Provisions) Act 1978 (the “Baker Report”) (P.Ex. 18) at 152; see also New Ireland Forum, The Cost of Violence arising from the Northern Ireland Crisis since 1969 (R.Ex. UU) at ¶ 2.1. This alarming and at times wanton destruction of life and property necessitated the enactment of special laws, see Northern Ireland (Emergency Provisions) Act 1973 (R.Ex. BB); Prevention of Terrorism (Temporary Provisions) Act 1976 (R.Ex. CC); Northern Ireland (Emergency Provisions) Act 1978 (R.Ex. DD); see also Report of the Commission to consider procedures to deal with terrorist activities in Northern Ireland (the “Diplock Report”) (R.Ex. AA); Suppression of Terrorism Act 1978 (P.Ex. 15), including the creation of special Diplock Courts to try political offenders, and transformed the Catholic areas of Belfast and Londonderry into zones of military occupation.

Were the Court persuaded that all that need be shown to sustain the political offense exception is that there be a political conflict and that the offense be committed during the course of and in furtherance of that struggle, the respondent would clearly be entitled to the benefits of that exception. However, that conclusion is but the beginning and not the end of the analysis that must be made to determine whether in fact Doherty may be properly extradited.

While it is true that some of the older English cases, see, e.g., In re Meunier [1894] 2 Q.B. 415, 419; In re Castioni [1891] 1 Q.B. 149, 156, 159, 166, and some of the American cases that have relied upon them, see, e.g., In re Mackin, supra, 80 Cr.Misc. 1 at 24-25; In re Gonzalez, 217 F.Supp. 717, 720-21 (S.D.N.Y.1963); In re Ezeta, 62 F. 972, 999 (N.D.Cal.1894), have assumed that that is all that need be shown, such an approach is hardly consistent with either the realities of the modern world, or the need to interpret the political offense exception in the light of the lessons of recent history. Nor is it reflective of the more recent English precedents which have, relying upon that experience, adopted a more restrictive view of that exception, see, e.g., Regina v. Governor of Pentonville Prison, Ex parte Cheng [1973] W.L.R. 746, 753; Regina v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556, 591-92, a view shared by at least one American court. See Eain v. Wilkes, 641 F.2d 504, 518-21 (7th Cir. 1981), cert. denied, 454 U.S. 894, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981). But see Karadzole v. Artukovic, 247 F.2d 198, 204-05 (9th Cir. 1957), aff'g, Artukovic v. Boyle, 140 F.Supp. 245 (S.D.Calif.1956), vacated, 355 U.S. 393, 78 S.Ct. 381, 2 L.Ed.2d 356 (1958); Quinn v. Robinson, No. C-82-6688 RPA, slip op. at 22-23, 29-32 (N.D.Cal. Oct. 3, 1983), appeal pending, 83-2455 (9th Cir. Oct. 14, 1983); In re McMullen, Magistrate No. 3-78-1099 MG, slip op. at 3 (N.D.Cal. May 11, 1979).

How then is the political exception doctrine to be construed and what factors should limit its scope? Not every act committed for a political purpose or during a political disturbance may or should properly be regarded as a political offense. Surely the atrocities at Dachau, Aushwitz, and other death camps would be arguably political within the meaning of that definition. The same would be true of My Lai, the Bataan death march, Lidice, the Katyn Forest Massacre, and a whole host of violations of international law that the civilized world is, has been, and should be unwilling to accept. Indeed, the Nuremberg trials would have no legitimacy or meaning if any act done for a political purpose could be properly classified as a political offense. Moreover, it would not be consistent with the policy of this nation as reflected by its participation in those trials, for an American court to shield from extradition a person charged with such crimes.

The Court concludes therefore that a proper construction of the Treaty in accordance with the law and policy of this nation, requires that no act be regarded as political where the nature of the act is such as to be violative of international law, and inconsistent with international standards of , civilized conduct. Surely an act which would be properly punishable even in the context of a declared war or in the heat of open military conflict cannot and should not receive recognition under the political exception to the Treaty. Cf. McGlinchey v. Wren, 3 Ir.L.Rep. Monthly 169 (Irish Sup.Ct.1982) (political offense exception of Treaty between Northern Ireland and the Republic of Ireland limited by the highest court of the Republic to “what reasonable, civilised people would regard as political activity.”)

The Court rejects the notion that the political offense exception is limited to actual armed insurrections or more traditional and overt military hostilities. The lessons of recent history demonstrate that political struggles have been commenced and effectively carried out by armed guerillas long before they were able to mount armies in the field. It is not for the courts, in defining the parameters of the political offense exception, to regard as dispositive factors such as the likelihood that a politically dissident group will succeed, or the ability of that group to effect changes in the government by means other than violence, although concededly such factors may at times be relevant in distinguishing between the common criminal and the political offender.

Nor is the fact that violence is used in itself dispositive. Instead the Court must assess the nature of the act, the context in which it is committed, the status of the party committing the act, the nature of the organization on whose behalf it is committed, and the particularized circumstances of the place where the act takes place.

Considering the offenses for which extradition is sought in the light of these precepts, the Court is constrained to conclude that the political offense exception clearly encompasses those offenses. We are not faced here with a situation in which a bomb was detonated in a department store, public tavern, or a resort hotel, causing indiscriminate personal injury, death, and property damage. Such conduct would clearly be well beyond the parameters of what and should properly be regarded as encompassed by the political offense exception to the Treaty. Whatever the precise contours of that elusive concept may be, it was in its inception an outgrowth of the notion that a person should not be persecuted for political beliefs and was not designed to protect a person from the consequences of acts that transcend the limits of international law.

Nor is this a case where violence was directed against civilian representatives of the government, where defining the limits of the political offense exception would be far less clear. Similarly, this is not a case where the alleged political conduct was committed in a place other than the territory where political change was to be effected, a circumstance that would in all probability render the political offense exception inapplicable. See, e.g., Cheng, supra, [1973] W.L.R. at 752-53, 755-56, 771; Schtraks, supra, [1964] A.C. at 591. Finally, the Court is not presented with facts which establish that hostages were killed or injured or where the principles embodied in the Geneva Convention have clearly been violated.

Instead, the facts of this case present the assertion of the political offense exception in its most classic form. The death of Captain Westmacott, while a most tragic event, occurred in the context of an attempted ambush of a British army patrol. It was the British Army’s response to that action that gave rise to Captain Westmacott’s death. Had this conduct occurred during the course of more traditional military hostilities there could be little doubt that it would fall within the political of-fense exception. The only issue remaining, therefore, is does the political exception become inapplicable because the PIRA is engaged in a more sporadic and informal mode of warfare.

The Court is not unmindful of the fact that it would be most unwise as a matter of policy to extend the benefit of the political offense exception to every fanatic group or individual with loosely defined political objectives who commit acts of violence in the name of those so called political objectives. Therefore it is proper for the Court to consider the nature of an organization, its structure, and its mode of internal discipline, in deciding whether the act of its members can constitute political conduct under an appropriate interpretation of the Treaty.

However, the PIRA, as the evidence showed, while it may be a radical offshoot of the traditional Irish Republican Army, has both an organization, discipline, and command structure that distinguishes it from more amorphous groups such as the Black Liberation Army or the Red Brigade. Indeed, as the testimony established, its discipline and command structure operates even after its members are imprisoned and indeed, as Doherty testified, it was at the direction of the PIRA that he escaped and then came to the United States. See Tr. at 650-73, 830; see also In Re Mackin, supra, 80 Cr.Misc. 1 at 78-80.

Given that defined structure, the fact that the PIRA may not be likely to achieve its objectives does not deprive its acts of their political character. This Court cannot, in interpreting the Treaty, make the political exception concept turn upon the Court’s assessment of the likelihood of a movement’s success. History is replete with examples of political and insurrectionary movements that have succeeded in effecting political changes that were believed to be improbable if not impossible.

The Court is not, however, persuaded by the argument that respondent’s offense must or should be regarded as political merely because the United Kingdom has recognized the necessity to enact special legislation and to create special courts to deal with the problems created by the escalating violence between Republicans and Unionists in Northern Ireland. If that were the case, any lawless group could create political status for itself by merely escalating the level of this lawlessness to a point where the government is constrained to deal with it by special remedies.

The Court also specifically rejects respondent’s claim that the Diplock Courts and the procedures there employed are unfair, and that respondent did not get a fair trial and cannot get a fair trial in the courts of Northern Ireland. The Court finds the testimony of the Government witnesses as to this issue both credible and persuasive. The Court concludes that both Unionists and Republicans who commit offenses of a political character can and do receive fair and impartial justice and that the courts of Northern Ireland will continue to scrupulously and courageously discharge their responsibilities in that regard. Nevertheless, the fairness of the administration of justice in those courts does not and cannot deprive respondent’s offenses of their essentially political character.

Finally, the Court does not accept as dispositive the view expressed by David J. Bentley, Assistant Legal Advisor to the United Kingdom Home Office, which indicates that in England the political offense exception to extradition is now believed to encompass only those situations in which the sovereign has some interest over and above that of enforcing peace and public order in prosecuting an alleged political offender. See Tr. at 1232-33, 1245-53. The fact that a sovereign may be neutral in punishing violent conduct designed to achieve political ends does not in itself transform offenses that would otherwise be clearly political in nature into ordinary common law crimes.

Moreover, were the Court to accept such a view, it would be placed in the delicate situation of having to assess the neutrality and indirectly the good faith of the sovereign seeking extradition, a circumstance that could adversely affect the conduct of foreign relations and might well be inconsistent with the Treaty’s structure,-which clearly places such determinations in the hands of the Secretary of State. See In re Mackin, 668 F.2d 122, 133-34 (2d Cir.1981); Eain, supra, 641 F.2d at 513, 516-17. See also Sindona, supra, 619 F.2d at 174-76. That possibility is obviously present here where it is certainly at least arguable that the United Kingdom may not be entirely neutral with respect to the issue of Irish independence because it is the end of British rule in Ireland that has been and continues to be the principal objective of the Irish Republican movement.

In sum, the Court concludes for the reasons given that respondent’s participation in the military ambush which resulted in Captain Westmacott’s death was an offense political in character. The Court further concludes that his escape from Crumlin Road prison, organized and planned as the evidence established that it was, under the direction of the PIRA and to effect its purposes rather than those of Doherty himself, was also political. That conduct and all of the various and sundry charges which are connected therewith and for which extradition is sought are not extraditable offenses under Article V(l)(c)(i) of the Treaty. The request for extradition is therefore denied.

It is SO ORDERED.

      . It was clear from the testimony that by August 1969, a state of civil disorder had been reached that had threatened the viability of the Northern Irish government. As a consequence, the Prime Minister requested assistance from the United Kingdom and British troops were sent to maintain order. It is also clear that they were initially well received. See Tr. at 60, 130-31.

      . While the Court is not persuaded that the methods and objectives of the PIRA are in fact shared by a majority of the people in Ireland, or indeed by a majority of the Catholics in Northern Ireland, that circumstance is not dispositive of the issue of whether respondent, as a member of that group, is entitled to rely upon the political offense exception to the Treaty. Indeed, at the time of the American Revolution, there were a large number of colonists who not only desired a continued union with England, but regarded the thought of armed opposition to the Crown as both treasonous and abhorrent. See, e.g., J.R. Alden, The American Revolution 1775-1783 (1954); S.E. Morison, The Oxford History of the American People (1905); C.H. Van Tyne, Loyalists in American Revolution (1902). Many loyalists suffered the consequences of these beliefs both before and after independence. Given the nature of that history it would indeed be anomolous for an American court to conclude that the absence of a political consensus for armed resistance in itself deprives such resistance of its political character.

      . In England the law may indeed be reaching the point where any violent conduct will not be regarded as political when peaceful means are available. See testimony of David J. Bentley, Legal Advisor to the Home Office of the United Kingdom, Tr. at 1270-74.
      However, even a recent English case suggests that a political assassination committed in the country where political change is sought to be effected may be protected political conduct. See Cheng, supra, [1973] W.L.R. at 755-56.

      . The concept was first enunciated during an era when there was much concern for and sympathy in England for the cause of liberation for subjugated peoples. See Schtraks, supra, [1964] A.C. at 582-83; see also Cheng, supra, [1973] W.L.R. at 754-56. Nevertheless, even then there was concern that the term “political offense” should not be defined too precisely or too formalistically lest it unduly restrict proper modes of political conduct or impermissibly sanction every act committed during the cause of a political struggle. In any event, it seems fair to conclude that the Victorian and post-Victorian climate in which the doctrine arose would hardly have been sympathetic to the kind of paramilitary terrorism that has become the plague of the modern age.
      It is also significant that even at an early stage in the development of the political offense exception, the English courts found means to limit the concept by excluding from its definition anarchistic activity directed at all governments in general rather than at a particular regime. See In re Meunier, supra, 2 Q.B. at 419. Some American courts have resorted to a similar rationale, see Eain, supra, 641 F.2d at 521-22. Eain is explicit in recognizing that the best approach may be to balance the policy considerations which underline that exception against those which make it necessary to limit that exception to insure that it does not afford a haven for persons who commit the most heinous atrocities for political ends. See Eain, supra, 641 F.2d at 519-20; see also In re Quinn, Criminal No. CR-81-146-MISC, slip op. at 107-11 (N.D.Cal. Sept. 29, 1982) (Magistrate’s Opinion).

      . It is significant of course that the discretion vested in the prosecution by the emergency legislation to try offenders in the Diplock Courts is indeed exercised on the basis of a determination that what would otherwise be common law offenses are politically motivated. See Northern Ireland (Emergency Provisions) Act 1978 (R.Ex. DD) at §§ 29, 31.-(1), Schedule 4 Notes 1 & 2; Northern Ireland (Emergency Provisions) Act 1973 (R.Ex. BB) at §§ 26.-(1), 28.-(1), Schedule 4 Notes 1 & 2; Diplock Report (R.Ex. AA) at ¶¶ 3-11 & Appendix; Tr. 409, 414-18, 519, 918-20.

      . The Court is not persuaded by the fact that the current political administration in the United States has strongly denounced terrorist acts and has stated that to refuse extradition in this case might jeopardize foreign relations. See Affidavit of Terrell E. Arnold ¶ 3 (June 14, 1984). The Treaty vests the determination of the limits of the political offense exception in the courts and therefore reflects a congressional judgment that that decision not be made on the basis of what may be the current view of any one political administration. See, e.g., In re Mackin, 668 F.2d 122, 132-37 (2d Cir.1981); Eain, supra, 641 F.2d at 513.

      . Of course it is clear that where an offense otherwise political in character is committed for purely personal reasons such as personal vengence or vindictiveness, that circumstance might well deprive the offense of its political character. In this case there is no suggestion that Doherty had any personal hostility to Captain Westmacott. There is some suggestion that the physical attack upon one of the guards may have had some retaliatory aspects, see R.Ex. Y at 2. However, on balance the Court is persuaded that that guard was assaulted because he sought to prevent the escape.


source: Caselaw Access Project

author: STUART, Chief Judge.

license: Public Domain

text:
    Ann PRUEITT, Plaintiff, v. BOONE COUNTY, IOWA, et al., Defendants.
    Civ. No. 84-116-A.
    United States District Court, S.D. Iowa, C.D.
    Dec. 12, 1984.
    Jaki Samuelson, Whitfield, Musgrave, Selvy, Kelly & Eddy, Bernard Spaeth, Jr., Des Moines, Iowa, for plaintiff.
    J.M. Sullivan, Asst. City Atty. for City of Des Moines, Lee H. Gaudineer, Jon Swanson, Des Moines, Iowa, for defendants Boone County and John Ellison.
    Matthew W. Williams, Asst. Atty. Gen., Des Moines, Iowa, for defendants Ellis, Ellison and Franklin.
   ORDER OF DISMISSAL

STUART, Chief Judge.

This case presents the question whether a state that has waived its sovereign immunity from suit for breach of contract has thereby waived its Eleventh Amendment immunity from suit in federal court.

Plaintiff was an employee of the Woodward State Hospital-School, (hereinafter, Woodward) located in Boone County, Iowa. She lived with two other Woodward employees in a three-bedroom house in Des Moines. In August, 1983, the house was searched by defendant Ellison, who was the Director of Security for Woodward and a Boone County deputy sheriff. Ellison was accompanied by a Des Moines police officer. Plaintiff alleges that, after the search, Ellison told defendant Franklin, Superintendent of Woodward, and defendant Ellis, an administrative employee of Woodward, that property belonging to Woodward had been found in plaintiffs bedroom. Plaintiff was suspended, and ultimately terminated, from her job at Woodward.

Defendants Boone County and Ellison have filed a third-party complaint against Woodward and the State of Iowa. The third-party plaintiffs allege that Woodward and the State entered into an agreement with Boone County whereby Woodward’s Security Director (Ellison) would become a Boone County deputy sheriff. The purpose for this arrangement was to vest in the Security Director the authority to enforce Iowa laws on the Woodward campus. Boone County and Ellison contend that, under the terms of the agreement, Woodward and the State are obligated to indemnify them for any costs they incur as a consequence of plaintiff’s lawsuit. Boone County and Ellison have also filed a cross-claim for indemnity against their co-defendant, Franklin, alleging that he was a party to the same agreement. Woodward, the State of Iowa, and Franklin have moved to dismiss the claims for indemnity, asserting that the claims are barred by the Eleventh Amendment to the United States Constitution.

The Eleventh Amendment provides:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Despite the limited terms of the Eleventh Amendment, it is established that a federal court cannot entertain a suit brought by a citizen against his own state. Hans v. Louisiana, 134 U.S. 1 (1890). It is said that “the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a state without consent given ____” Ex parte State of New York No. 1, 256 U.S. 490, 497, 41 S.Ct. 588, 589, 65 L.Ed. 1057 (1921). The Supreme Court recently made clear that not even the doctrine of pendent jurisdiction affords a means of escape from Eleventh Amendment immunity. Pennhurst State School and Hospital v. Halderman, — U.S. -, -, 104 S.Ct. 900, 917-18, 79 L.Ed.2d 67 (1984).

While a state may waive its immunity, consent to suit in federal court must be unequivocally expressed. See, e.g., Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662 (1974).

Frequently, a threshold question is whether a particular suit is in fact a suit against a state. “It is clear, of course, that in the absence of consent a suit in which the state or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment.” Pennhurst, supra, — U.S. at -, 104 S.Ct. at 908-09. When the defendant is a state official, the suit is barred if “the state is the real, substantial party in interest.” Ford Motor Company v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945). The general rule is that the state is the real party in interest if “ ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,’ or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act.’ ” Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963) (citations omitted).

With these principles in mind, the Court will consider whether the claims for indemnity against the third-party defendants and cross-claim defendant are claims against the. State without its consent. If so, the claims are barred by the Eleventh Amendment.

Little effort is needed to conclude that the indemnity claims against Woodward, as an agency of the State; against the State itself; and against Franklin, as the supervisor of a state agency, are all claims against the State of Iowa. See Pennhurst, supra, — U.S. at -, 104 S.Ct. at 908-09.

Boone County and Ellison, however, contend that the state has consented to suit. They rely principally on Kersten Company, Inc. v. Department of Social Services, 207 N.W.2d 117 (Iowa 1973) and Greiner v. Gunnar A. Olsen Corp., 498 F.Supp. 908 (N.D.Iowa 1976).

In Kersten, the Iowa Supreme Court held that “the state, by entering into a contract, waives its defense of governmental immunity and consents to be sued for breach thereof.” Kersten, supra, at 122. It should be noted that Kersten was an action in state court. The Iowa Supreme Court was not asked to decide and did not consider the issue presented here — whether the State in waiving its sovereign immunity thereby waived its Eleventh Amendment immunity.

The precise issue not presented in Kersten was squarely confronted in Greiner, supra. However, this Court finds itself in disagreement with the conclusion reached in Greiner. Because this Court does not lightly differ with its neighboring district, and realizes that the issue is one upon which reasonable minds might differ, it will carefully set forth the reasons for its disagreement.

In Greiner, the defendant state agencies moved to dismiss on the ground that any consent by the State to be sued for breach of contract did not apply in federal court. The Court disagreed, holding that the State’s waiver of immunity from suit for breach of contract included a waiver of immunity from suit in federal court. In reaching this conclusion, the court noted that one of the cases cited by the Iowa Supreme Court in Kersten was Na-Ja Construction Corp. v. Roberts, 259 F.Supp. 895, 896 (D.C.Del.1966). The Greiner court found this citation significant:

Na-Ja, supra, was an action commenced in federal district court for the district of Delaware in which defendant county government was found to have waived sovereign immunity. The citation of Na-Ja would indicate the court’s understanding that the new remedy would also be available in federal court.

Greiner, supra at 909.

As noted by the Greiner court, the defendant in Na-Ja was an entity of county, rather than state, government. County governments are not protected by the Eleventh Amendment. See, e.g., Moor v. County of Alameda, 411 U.S. 693, 717-721, 93 S.Ct. 1785, 1799-1801, 36 L.Ed.2d 596 (1973). Recognizing this, the Na-Ja court implied that, if the defendant had been an arm of state government, it would not have found a waiver of immunity from suit for breach of contract, to include a waiver of immunity from suit in federal court. Na-Ja, supra, at 899.

In any event, this Court does not find in the Iowa Supreme Court’s tacit citation to Na-Ja the “unequivocal expression” of consent required for a state to waive its Eleventh Amendment immunity. See, e.g., Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662 (1974).

The Greiner court, however, did not rest its decision solely on the Iowa Supreme Court’s citation to Na-Ja. The Greiner court indicated that it found persuasive the following wording by Judge Haynsworth in Markham v. City of Newport News, 292 F.2d 711, 716 (4th Cir.1961):

From all of these cases it is apparent that a court, in determining its own jurisdiction, must look to the constitution and laws of the sovereignty which created it. The laws of a state cannot enlarge or restrict the jurisdiction of the federal courts or those of any other state. It necessarily follows that whenever a state provides a substantive right and a remedy for its enforcement in a judicial proceeding in any state court, a judicial controversy involving the right may be adjudicated by a United States District Court if it has jurisdiction under the Constitution and laws of the United States.

This language appears to have been taken out of context. The issue in Markham was whether a state could prevent resort to federal diversity jurisdiction for enforcement of a right created by the state. The Virginia legislature had enacted a statute providing that no tort action could be brought against a city or other political subdivision of the State except in State court. In effect, this was an attempt to extend to local government entities the State’s Eleventh Amendment immunity. This is vastly different from the situation in Greiner, where the issue was the extent to which the state had voluntarily limited its rightful Eleventh Amendment immunity. In essence, Markham involved state usurpation of federal judicial power, while Greiner involved state relinquishment of immunity. Indeed, in the very sentence immediately following the language quoted in Greiner, Judge Haynsworth indicated that he would disagree with the result subsequently reached in Greiner:

A state enjoying the protection of the Eleventh Amendment to the Constitution of the United States, of course, may consent to be sued in her own courts without waiving her immunity to suits in the federal courts, but the Eleventh Amendment does not extend to cities.

Markham, supra, at 716.

A failure to draw the distinction, recognized by Judge Haynsworth in Markham, between sovereign immunity and Eleventh Amendment immunity would seem to account for the holding in Greiner. The distinction was succinctly expressed by the Supreme Court in Pennhurst State School and Hospital v. Halderman, — U.S. -, -, 104 S.Ct. 900, 908-09 (1984): “A State’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued.” In a footnote, the Supreme Court added: “For this reason, the Court consistently has held that a State’s waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts.” Pennhurst, supra, at 907 n. 9.

This Court must disagree with the decisions in Greiner and in Chicago and Northwestern Transportation Company, 498 F.Supp. 1 (N.D.Iowa 1978), which reaffirmed Greiner in a case involving the exercise of pendent or ancillary jurisdiction. See Pennhurst State School and Hospital v. Halderman, — U.S. -, -, 104 S.Ct. 900, 917-19 (1984).

IT IS THEREFORE ORDERED that the motions to dismiss on behalf of Woodward State Hospital-School, the State of Iowa, and Owen Franklin are hereby granted.

      . The Court's consideration of this question is made easier by the absence of any dispute over the state law basis for the indemnity claims. See Pennhurst, supra, — U.S. at -, 104 S.Ct. at 109-11.

      . After concluding that the real defendant was the county, the Na-Ja court said:
      [Defendant] argues that, even though there may be a waiver of immunity insofar as the Delaware State courts are concerned, there has been no waiver extending to suits in the Federal District Court____ In Murray v. Wilson Distilling Co., 213 U.S. 151, 172, 29 S.Ct. 458 [465], 52 L.Ed. 742 (1909), the Supreme Court stated that the fact that a state has consented to be sued in its own courts does not create a right to be sued in a federal court. It is important to note, however, that the court there decided that the lawsuits in question were against the State of South Carolina itself, the state was the real party in interest, and that the suit was, therefore, barred by the language of the Eleventh Amendment. 213 U.S. at 173, 29 S.Ct. 458 [at 465].

        Na-Ja, supra, at 899.


author: GARRITY, District Judge.

text:
    Francis A. WILLHAUCK, Jr., et al., Plaintiffs, v. Paul HALPIN et al., Defendants.
    Civ. A. No. 82-1850-G.
    United States District Court, D. Massachusetts.
    Dec. 12, 1984.
    Robert C. Hahn, Hahn & Maykov, Boston, Mass., for plaintiffs.
    Paul D. Maggioni, Town Counsel, Dedham, Mass., for Town of Milton, R. Galvin, Dietenhofer, Tapsel Alvin Belmonte, Town of Dedham.
    Robert D. O’Leary, Quincy, Mass., for J. Moriarty, J. Rogers.
    Dianne L. Solomon, Asst. Atty. Gen., Boston, Mass., for Huffam, Mills, M.D.C. Halpin, Perry, Callender.
   MEMORANDUM AND ORDER GRANTING THE TOWN OF MILTON’S MOTION TO DISMISS

GARRITY, District Judge.

Plaintiffs’ civil rights action arises out of the July 2, 1979 arrest and alleged beating of Francis Willhauck, Jr. by police officers, and a January 9, 1980 incident at the Willhauck family residence in Milton.

The relevant facts as alleged in or reasonably inferred from plaintiffs’ complaint are essentially as follows. After an automobile chase through Norfolk and Suffolk Counties and while in the process of being arrested, Willhauck, Jr. was struck with a revolver by a Metropolitan District Commission (“MDC”) police officer. Other officers, including Officers Moriarty and Galvin from the Town of Milton, were on the scene at the time of the alleged attack and could have prevented it.

The chief of the Milton police was notified of the incident, yet failed to investigate it or take any disciplinary action regarding the Milton officers. On January 9, 1980, several months after his original arrest, MDC police officers and Officer Rogers from the Town of Milton arrived at the Willhauck residence to arrest Willhauck, Jr. on a default warrant. The officers attempted to execute the warrant at 3:30 A.M. and because of the hour they thereby upset the Willhauck’s household. The warrant was never executed because Willhauck, Jr.’s lawyer was able to convince an MDC Night Commander that the warrant was issued by mistake.

On the basis of these allegations the Willhaucks assert three claims against the Town of Milton: (1) that the town inadequately trained or supervised its officers thereby causing Willhauck, Jr.’s physical injury; (2) that the town’s failure to investigate Willhauck, Jr.’s allegations of police brutality violated his due process rights; and (3) that the town’s practice of executing arrest warrants at night violated his Fourth Amendment right to be free from unreasonable search and seizure. After consideration of the arguments of the parties as set forth in their various memoranda, we find none of these claims to have merit and therefore grant the Town of Milton’s motion to dismiss.

Allegations of a single instance of police brutality do not support a claim of inadequate training or supervision on the part of a municipality unless the beating was “unusually brutal or egregious”. Turpin v. Mailet, 2 Cir.1980, 619 F.2d 196, 202. While unnecessary violence in making an arrest is certainly not to be condoned, the facts as alleged in this case do not come close to meeting such a standard. Even if proved, the failure of the Milton officers to prevent a single unnecessary blow by a fellow officer is not so egregious as to permit an inference of gross negligence on the part of city officials. Id.; cf. Fernandez v. Chardon, 1 Cir.1982, 681 F.2d 42, 55-56.

Willhauck, Jr.’s claim regarding denial of his due process rights by the town’s alleged failure to investigate is equally without merit. He has stated no liberty or property interest which has been infringed upon by the Police Chief's failure to investigate his complaint. Indeed, the Supreme Court has recognized that even “a tendency to discourage the filing of civilian complaints and to minimize the consequences of police misconduct” would not be a sufficient basis for holding administrators liable absent a showing that such tendencies caused further misconduct. Rizzo v. Goode, 1976, 423 U.S. 362, 368-371, 96 S.Ct. 598, 602-04, 46 L.Ed.2d 561. Willhauck, Jr. does not and cannot contend that the alleged failure of the chief of the Milton police to investigate his complaint of police brutality in any way caused his physical injuries. He has not alleged sufficient facts to support a claim that there existed a municipal custom or policy of failing to investigate complaints of police brutality, much less a claim that any such custom or policy contributed to his injury.

Finally, we find that the plaintiffs have not stated claim against the Town of Milton for the attempted nighttime arrest. Plaintiffs have not cited, nor has the court’s research revealed, a single authority which would support the contention that nighttime arrests pursuant to a warrant are impermissible. On the contrary, it appears that nighttime arrests are permitted when made pursuant to a warrant, United States v. Corrigan, Wy.D.C. 1975, 401 F.Supp. 795, cf. Dorman v. United States, D.C.Cir.1970, 435 F.2d 385, 391 (en banc); or when justified by exigent circumstances. United States v. Mapp, 2 Cir.1973, 476 F.2d 67, 74. Therefore, the policy of the town permitting warranted nighttime arrests cannot be the basis of a claim against it.

Accordingly, the claims against the Town of Milton are hereby dismissed.


author: NANGLE, Chief Judge.

text:
    Karen Ann MARTIN, Plaintiff, v. CARDINAL GLENNON MEMORIAL HOSPITAL FOR CHILDREN, Defendant.
    No. 84-2273C(1).
    United States District Court, E.D. Missouri, E.D.
    Dec. 12, 1984.
    Frank J. Niesen, Jr., St. Louis, Mo., for plaintiff.
    John R. Truman, St. Louis, Mo., for defendant.
   ORDER AND MEMORANDUM

NANGLE, Chief Judge.

IT IS HEREBY ORDERED that defendant’s motion to strike be and is granted. This is an action brought by a former employee of defendant in which plaintiff alleges that she was discharged by defendant on the basis of her alleged handicap, diabetes. Plaintiff relies on § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, for her cause of action. In her prayer for relief, plaintiff seeks, inter alia, punitive damages and damages for humiliation and embarrassment. Punitive damages are clearly not available in an action under § 504. Gelman v. Department of Education, 544 F.Supp. 651, 653-54 (D.Colo.1982). Although the availability of damages for humiliation and embarrassment presents a closer question, this Court is persuaded by the well-reasoned opinion of Judge Cahill of this District in Bradford v. Iron County C-4 School District, No. 82-303C(4), slip op. at 9-18, (E.D.Mo. June 13, 1984). In Bradford, Judge Cahill carefully analyzed authorities in this Circuit and recent decisions of the Supreme Court. He concluded that relief for “mental anxiety and distress and for ... humiliation and embarrassment” was not available under § 504. This Court follows Bradford. Accordingly, both plaintiff’s prayer for punitive damages and her prayer for damages for humiliation and embarrassment be and are stricken.


text:
    Sylvester WILSON, Plaintiff, v. CONTINENTAL MANUFACTURING CO., Gayle Schuchmann, Sharon Duey, Joyce L. Sennewald, James Carmichael, Gino Baruzzini, Lester Miller and Richard J. Yenicek, Defendants.
    No. 84-462C(1).
    United States District Court, E.D. Missouri, E.D.
    Dec. 13, 1984.

      Sylvester Wilson, pro se.
    Ira L. Blank, Clayton, Mo., for defendants.
   MEMORANDUM

NANGLE, Chief Judge.

This case is now before this Court on defendants’ motion for an award of attorney’s fees against plaintiff pursuant to 42 U.S.C. § 1988.

I. BACKGROUND OF THIS CASE

Plaintiff filed his complaint in this case pro se and in forma pauperis. His complaint charged defendant Continental Manufacturing Company (hereinafter “Continental”) and seven (7) individual defendants with employment discrimination on the basis of plaintiff’s race and sex. This Court construed plaintiff’s complaint as relying on Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981.

Defendants did not answer the complaint, but responded with two (2) successive motions for summary judgment. Plaintiff never responded to either motion even though this Court ordered him to respond to the second motion. On the first motion, this Court dismissed the Title VII claim for failure to comply with the statute of limitations. See Order and Memorandum dated April 10, 1984. This left only plaintiff’s claims, under § 1981, of race discrimination in employment and retaliatory discharge. These claims were dismissed by this Court’s Order and Memorandum dated August 27, 1984. Both § 1981 claims were dismissed as to three (3) of the individual defendants, Miller, Sennewald and Duey, because the complaint lacked allegations of personal involvement on the part of said defendants. The employment discrimination claim was dismissed as to the other defendants on the basis of the collateral estoppel effect of the state administrative finding that plaintiff was discharged for falsifying a company record. The retaliation claim was dismissed because the record established that plaintiff’s only charge of discrimination was filed seven (7) days after his discharge. Defendants now seek their attorney’s fees incurred in defending plaintiff’s claims. Plaintiff did comply with this Court’s order to respond to the instant motion. Plaintiff’s response does not controvert any of the arguments made by defendants in support of their motion. Plaintiff's response is simply that he is indigent and, hence, should not be required to pay defendants’ attorney’s fees.

II. DEFENDANTS’ RIGHT TO ATTORNEYS’ FEES

Section 1988 provides, in pertinent part, as follows:

In any action or proceeding to enforce a provision of Section [ ] 1981, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneys’ fee as part of the costs.

42 U.S.C. § 1988. A similar provision appears in § 706(E) of Title VII, 42 U.S.C. § 2000e-5(E), and the two (2) provisions have been held to be coterminous. Badillo v. Central Steel & Wire Co., 717 F.2d 1160, 1163 (7th Cir.1983). In Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), the Supreme Court interpreted § 706(E) as requiring an award of attorney’s fees to prevailing plaintiffs “in all but special circumstances.” Id. at 417, 98 S.Ct. at 698. However, a court should award attorney’s fees to a prevailing defendant only “upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Id. at 421, 98 S.Ct. at 700. See also H.R.Rep. No. 94-1558 at 7 (1976); Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1937 n. 2, 76 L.Ed.2d 40 (1983); Buford v. Tremayne, 747 F.2d 445 at 448 (8th Cir., 1984); American Family Life Assurance Co. v. Teasdale, 733 F.2d 559, 569-70 (8th Cir.1984). The holding of Christiansburg, and its adoption of divergent standards for awarding attorney’s fees to prevailing plaintiffs and defendants, rests on a recognition of the divergent purposes of such awards in civil rights litigation. An award to a meritorious plaintiff is intended to “ ‘make it easier for a plaintiff of limited means to bring a meritorious suit’ ”, whereas an award to a meritorious defendant is intended to “ ‘deter the bringing of lawsuits without foundation.’ ” Id. at 420, 98 S.Ct. at 699. (citations omitted). See also Braxton v. Bi-State Development Agency, 561 F.Supp. 889, 890-91 (E.D.Mo. 1983), aff'd, 728 F.2d 1104 (8th Cir.1984). Moreover, in making a determination of whether a plaintiff’s claim was frivolous, unreasonable, or without foundation, a court must not “engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” Christiansburg, 434 U.S. at 421-22, 98 S.Ct. at 700.

In the opinion of this Court, plaintiff’s action was so frivolous and without foundation that defendants are entitled to an award of attorney’s fees. Several facts support this conclusion. First, at the time he filed this action plaintiff was aware that he had been fired for falsifying records, that the state administrative agency agreed that that was the reason for his discharge, and that he had never filed a discrimination charge against defendants until after his discharge. See Smith v. Smythe, Cramer Co., 571 F.Supp. 58, 60 (N.D.Ohio 1983) (plaintiffs liable for attorney’s fees under § 1988 where they were aware from the outset that their claim was frivolous and without foundation). Second, plaintiff has never come forward, despite many opportunities to do so, with any evidence to support his allegations. See Teasdale, 733 F.2d at 569 (plaintiff liable for § 1988 attorney’s fees where it was unable to produce any admissible evidence supporting its claim). Third, plaintiff never, with the exception of the instant motion, responded or contested any of defendants’ motions. See Davis v. Braniff Airways, Inc., 468 F.Supp. 10, 15 (N.D.Tex.1979) (plaintiff liable for defendant’s attorney’s fees where plaintiff did not respond to defendant’s motion). Fourth, two (2) of the named defendants (Miller and Sennewald) are not mentioned at all in plaintiff’s complaint and plaintiff’s complaint did not allege any personal involvement on the part of another named defendant (Duey). See Gerena-Valentin v. Koch, 739 F.2d 755, 761 (2d Cir. 1984) (§ 1988 attorney’s fees awarded to two defendants as to whom complaint was groundless); Durrett v. Jenkins Brickyard, Inc., 678 F.2d 911 (11th Cir.1982) (plaintiff named wrong defendant). Finally, plaintiff continued to litigate his claim and did not voluntarily dismiss same, even as to defendants Miller, Duey and Sennewald, after it became apparent from defendants’ motions that his claim was truly groundless. See Goff v. Texas Instruments, Inc., 429 F.Supp. 973, 976 (N.D.Tex. 1977) (plaintiff liable for defendant's attorney’s fees where he refused to voluntarily dismiss case following defendant’s motions).

Under these circumstances, an award of attorney’s fees to defendants is justified. Defendants have been forced to defend a lawsuit that was baseless from its inception. However, defendants are not the only victims in this case, because “the entire public inevitably suffers when a vindictive plaintiff squanders limited judicial resources by prosecuting frivolous lawsuits.” Teasdale, 733 F.2d at 570. An award of attorney’s fees in this case will further the purpose of deterring groundless lawsuits. Christiansburg, 434 U.S. at 420, 98 S.Ct. at 699. This Court is sympathetic to plaintiff’s plea of indigency. Nevertheless, this Court agrees that “[t]he ‘nothing to lose’ syndrome of in forma pauperis proceedings cannot be permitted to become an expensive drain on employers to satisfy the whim of heedless or spiteful ex-employees.” Moss v. ITT Continental Baking Co., 468 F.Supp. 420, 421-22 (E.D.Va.1979).

Accordingly, this Court holds that defendants are entitled to an award of attorney’s fees against plaintiff.

III. AMOUNT OF ATTORNEY’S FEES

“The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Beyond calculation of this so-called “lodestar” figure, both the Supreme Court and the Eighth Circuit have approved of the use of several other factors first enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974). Blum v. Stenson, — U.S. -, -, 104 S.Ct. 1541, 1544, 79 L.Ed.2d 891, 895-96 (1984); Hensley, 461 U.S. at 424, 103 S.Ct. at 1937 n. 3; Allen v. Amalgamated Transit Local 788, 554 F.2d 876, 884 (8th Cir.), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 176 (1977); Firefighters Institute for Racial Equality v. City of St. Louis, 549 F.2d 506, 516 (8th Cir.), cert. denied, 434 U.S. 819, 98 S.Ct. 60, 54 L.Ed.2d 176 (1977). Generally, the Johnson factors, in addition to the number of hours and the hourly rate, include: 1) the novelty and difficulty of the questions presented; 2) the skill needed to perform the legal service properly; 3) the preclusion of other employment by the attorney due to acceptance of the case; 4) whether the fee is fixed or contingent; 5) time limitations imposed; 6) the results obtained; 7) the experience, reputation and ability of the attorneys; 8) the “undesirability” of the case; 9) the nature and length of the professional relationship with the client; and 10) fee awards in similar cases. Several of these are not relevant herein.

In the case at bar, defendants’ attorney, Ira L. Blank, spent 43.2 hours on this case. His customary rate is $85.00 per hour. He has been practicing law for five (5) years and specializes in the area of labor and employment law. A fellow associate, Joyce S. Samet, spent 3.1 hours on this action. Her customary rate is $55.00 per hour. Thus, the total billable value of the work performed by defendants’ counsel was $3,562.50. However, because defendant Continental is a long-time client of said counsel, defendants were billed for only $2,142.00 and this is the amount sought by defendants.

Although this Court finds the hourly rates charged by defendants' counsel to be reasonable, the number of hours spent on this case, especially by an attorney who claims to be “an experienced attorney in the area of employment discrimination,” Memorandum In Support of Defendants’ Motion For Award Of Attorney’s Fees at 9, is not reasonable. The legal questions presented in this case were neither novel nor complex. These questions concerned the statute of limitations in a Title VII action, the availability of 42 U.S.C. § 1981 for a claim of sex discrimination, and the collateral estoppel effect of a state administrative agency finding. The legal principles governing these issues are well-settled and are not difficult to find, even by an attorney who is inexperienced in the field of employment discrimination law. Two (2) other issues were: 1) whether a complaint that does not mention a named defendant or does not allege personal involvement by a named defendant states a valid claim under § 1981; and 2) whether a retaliatory discharge claim can be maintained under § 1981 where the only discrimination charge was filed against the employer after . the plaintiff was discharged. This Court finds it hard to believe that any legal research was required to dispose of these two (2) issues. Nevertheless, a total of 34.7 hours were spent on legal research. In addition, 9.3 hours were. spent on travel, telephone calls, letters and conferences, and 2.3 hours were spent reviewing files. It is not surprising that defendants were not billed for the full dollar value of the hours actually spent on this action. Ordinarily, this Court would refrain from second-guessing decisions of counsel as to the time that must be spent on a case. However, an award of attorney’s fees to a prevailing defendant in a civil rights case is a matter within the sound discretion of a trial court and where, as here, the hours spent are clearly excessive a court should endeavor to arrive at an appropriate hourly figure. It is the opinion of this Court that 20 hours is a reasonable number of hours for fully disposing of the issues in this case and, at $85.00 per hour, this number of hours results in a fee of $1,780.00. The various Johnson factors do not warrant any adjustment in this figure.

Plaintiff’s indigency, however, does warrant a downward adjustment in defendants’ fee award. Indigency of a civil rights plaintiff, while not controlling on the issue of defendants’ right to attorney’s fees, is relevant to the amount of the award. “[T]he trial court has broad discretion to reduce the fee award in light of mitigating factors, such as ... the relative economic status of the litigants.” Arnold v. Burger King Corp., 719 F.2d 63, 68 (4th Cir.1983). See also Id. at 68 n. 7. Consideration of this .factor reflects the fact that the purpose of prevailing defendant fee awards in groundless civil rights suits is to deter similar suits and not to make the defendant whole. Christiansburg, 434 U.S. at 420, 98 S.Ct. at 699. In the opinion of this Court, a reduction of defendants’ award to $1,000.00 is justified by the relative economic status of the parties and an award of $1,000.00 constitutes an adequate deterrent to baseless civil rights actions.

Accordingly, defendants are awarded $1,000.00 in attorney’s fees against plaintiff.


author: VAN SICKLE, District Judge.

text:
    Gary L. PATTEN, Plaintiff, v. Ken BEAUCHAMP, Defendant.
    Civ. No. A1-84-121.
    United States District Court, D. North Dakota, Southwestern Division.
    Dec. 13, 1984.

      Gary L. Patten, pro se.
    Irvin B. Nodland and Thomas A. Dickson, Bismarck, N.D., for defendant.
   MEMORANDUM AND ORDER

VAN SICKLE, District Judge.

Gary Patten initiated this pro se § 1983 action on June 5, 1984. The complaint alleges that Ken Beauchamp, a municipal judge, issued a restraining order against Patten, that Judge Beauchamp was not authorized to do so, that the act constituted an abuse of power and process, and that Judge Beauchamp issued the order “to deny the plaintiff due process of law,” “to accommodate an attorney friend and his client,” “to be troublesome and maliscious [sic] and to deprive the plaintiff the opportunity to pick-up [sic] his children and to return them to their home and to their school.” The complaint further alleges that the order is on plaintiff’s criminal and civil record and has been used against him.

For relief Patten seeks $10,000 as damages and various forms of declaratory and injunctive relief.

Several motions are pending at this time, including the defendant’s motion to dismiss for lack of subject matter jurisdiction and the defendant’s motion for summary judgment.

FACTUAL BACKGROUND

On May 1, 1982, Gary Patten was married to Valery Patten. At that time, the Pattens were living in Bismarck with their two children. Ms. Patten’s mother-in-law, Caroline Shaw, was temporarily staying at the Patten home to assist Ms. Patten (who had just been released from the hospital) with the children. According to the application for emergency relief, Patten assaulted his mother-in-law at his home in Bismarck. Ms. Patten, who was present during the assault, left the home with the two Patten children and, after staying at a resource “safe house” for three days, moved in with her mother who lives in Beulah. After moving to Beulah, Ms. Patten received “about 25 harassing phone calls” from Patten. On the night of May 6th, Patten came to the Shaw residence and “banged on both doors.”

The next day, Ms. Patten, with the assistance of a social worker, applied for a temporary protection order from Judge Beau-champ. Judge Beauchamp interviewed Ms. Patten at length and then signed the order. The order excluded Patten from the Shaw home and restrained him from threatening, molesting, or injuring Ms. Patten or the children. No visitation rights were granted, and Ms. Patten received temporary custody of the children.

Once the order was signed, it was delivered to Ms. Patten, who took it to the Clerk of the District Court at Stanton. The Clerk certified the order and returned it to Ms. Patten, who took the order to the Mercer County Sheriff’s Department for service. Service of the order was completed on Patten later that day. Following service, the sheriff returned the order to Judge Beau-champ’s office and retained a copy for himself.

MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

Defendant argues that the statute which confers jurisdiction for civil rights actions, 28 U.S.C. § 1343(a)(3), “does not abrogate the doctrine of judicial immunity” and that “because Judge Beauchamp is immune from civil liability for his judicial acts, this court should refuse to accept subject matter jurisdiction in this instance.” Doc. No. 15 at 1-2. Judge Beau-champ is not, however, necessarily immune from civil liability. Because of his position as a judge of limited jurisdiction, it is possible for the defendant to be liable for civil damages if he acted without jurisdiction over the subject matter or if the acts complained of were not judicial acts. Moreover, even judges of general jurisdiction are not immune from prospective collateral relief or a subsequent award of attorneys’ fees to a prevailing party. See Pulliam v. Allen, — U.S. -, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984). Because the plaintiff has alleged that Judge Beauchamp acted without authority and has requested prospective collateral relief, the argument that this court should refuse to accept jurisdiction based on the defendant’s immunity is without merit.

As an alternative position, the defendant argues that even if Judge Beau-champ is not immune from liability, this court lacks subject matter jurisdiction because the plaintiff “has failed to raise a substantial constitutional question.” Id. at 3. A suit cannot be dismissed on such grounds unless “the cause of action is so patently without merit as to justify ... the court’s dismissal for want of jurisdiction.” Bell v. Hood, 327 U.S. 678, 683, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946), quoted in Hagans v. Lavine, 415 U.S. 528, 542-43, 94 S.Ct. 1372, 1381-82, 39 L.Ed.2d 577 (1974) and Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 70, 98 S.Ct. 2620, 2628, 57 L.Ed.2d 595 (1978). This is not a case where the judge of limited jurisdiction was clearly within his jurisdictional authority (either by explicit statutory authority or by undisputed evidence that the provisions of the statute were precisely followed). In addition, this case involves the application of a statute that confers jurisdiction on the inferior court only when certain specified conditions occur (i.e., when the judge of general jurisdiction is unavailable, where good cause as defined by the statute is shown, and where the duration of the order is within the statutory maximum). Whether these conditions had been met at the time the protective order was issued entails not only questions of fact, but also an evaluation of the court’s judgment.

The complaint alleges a deprivation of constitutional rights. Although the claims may not have sufficient merit for the plaintiff to prevail (which is a question for summary judgment), this court is unable to find under these circumstances that the plaintiff’s action is “so patently without merit as to justify ... dismissal for want of jurisdiction.” Judge Beauchamp’s possible immunity from damages does not make him immune from the suit. The issue, of damages against a court of limited jurisdiction depends on whether the court had jurisdiction to act and whether the act was a judicial one. And the issue of immunity does not apply to the portion of the suit which requests prospective collateral relief.

MOTION FOR SUMMARY JUDGMENT

Defendant argues 1) that summary judgment should be granted as to the claim for civil damages; 2) that the request for injunctive relief should be denied because there is an adequate remedy at law and there is no risk of irreparable harm; and 3) that Patten’s request for various forms of declaratory relief should be denied based on “[principles of equity, comity, and federation [sic].” The defendant has submitted affidavits in support of this motion.

Rule 56(e) provides that

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

The plaintiff, who appears pro se, made no effort to comply with Rule 56 or Local Rule 5. But after review of the entire file, including plaintiffs brief in opposition and the supporting materials, I conclude that enough has been presented so that the Court can make a definitive ruling on the motion.

Civil Damages

A judge is immune from liability for damages if 1) the judge had jurisdiction over the subject matter and 2) the acts complained of were judicial acts. Birch v. Mazander, 678 F.2d 754, 755 (8th Cir.1982).

There are two different tests that are applied in the determination of whether a judge has jurisdiction over the subject matter. Judges of limited jurisdiction are protected “only when they act within their jurisdiction.” McClain v. Brown, 587 F.2d 389, 390 (8th Cir.1978); Randall v. Brigham, 74 U.S. (Wall. 7) 523, 535-36, 19 L.Ed. 285 (1868) (dicta); Bradley v. Fisher, 80 U.S. (Wall. 13) 335, 351, 20 L.Ed. 646 (1871) (dicta). See Stump v. Sparkman, 435 U.S. 349, 355-56, 98 S.Ct. 1099, 1104, 55 L.Ed.2d 331 (1978). In contrast, the jurisdiction of a judge of general jurisdiction is construed broadly where the issue of immunity is involved. Stump v. Sparkman, 435 U.S. 349, 356, 98 S.Ct. 1099, 1104, 55 L.Ed.2d 331 (1978). In determining whether a court of general jurisdiction is immune from damages, the Court has applied the “clear absence” test:

A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the “clear absence of all jurisdiction.”

Id. at 356-57, 98 S.Ct. at 1105, quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L.Ed. 646 (1872).

The defendant argues, without referring to the limited/general jurisdiction distinction, that the “clear absence” test should be applied to him. Doe. No. 14 at 7.. It is true that the Supreme Court has occasionally made general statements that could be construed as providing immunity from damages, by application of the “clear absence” test, to all judges acting in a judicial capacity. See, e.g., Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980); Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 734-35, 100 S.Ct. 1967, 1975-76, 64 L.Ed.2d 641 (1980); Pierson v. Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967). Such generalizations, however, have been made in cases involving judges of general jurisdiction. And it is apparent that the Supreme Court has not explicitly rejected the general/limited jurisdiction distinction described in Randall and Bradley (see Stump, 435 U.S. at 355-56, 98 S.Ct. at 1104). Given this fact, and given the fact that the Eighth Circuit has recently applied the limited/general jurisdiction distinction (McLain, 587 F.2d at 390), I find that the “clear absence” test does not apply to this case. Therefore, I find that Judge Beauchamp, as a judge of limited jurisdiction, is protected by the doctrine of judicial immunity only when he acted within his jurisdiction.

N.D.Cent.Code § 29-01-15(4) provides that municipal judges have jurisdiction to issue protective orders “under the particular circumstances and for the limited duration set forth in Section 14-07.1-08.” According to § 14-07.1-08, a municipal judge may issue a protective order 1) when the district court is unavailable; 2) where good cause is shown in an ex parte proceeding, if it is deemed necessary to protect the applicant or others from abuse; and 3) where the order expires seventy-two hours after its issuance. The statute further provides that

[a]ny order issued under this section and any documentation in support thereof shall be immediately certified to the district court. Such certification to the district court shall have the effect of commencing proceedings under section 14-07.1-02 and invoking other provisions of this chapter.

N.D.Cent.Code § 14-07.1-08 (1981).

The record demonstrates that the district court was unavailable; the plaintiff has offered no evidence that would put this issue in question.

The record also supports the defendant’s view that there was good cause for the issuance of the protective order. The plaintiff does not take issue on this point; he instead alleges that the order was issued to accommodate an attorney friend. First: this assertion is irrelevant because good cause has been shown; additional reasons for issuing the order, even invidious reasons, have no bearing on the issue. And second: the plaintiff has not provided any evidence to support his view that the order was issued to accommodate Larry Quast and his client. The defendant, on the other hand, has submitted materials that show that there was good cause, that the judge issued the order for these reasons, and that the attorney did not attempt in any way to influence the judge in regards to issuing the order.

It is also undisputed that the duration of the order was less than the statutory maximum.

This court finds that the three prerequisites for issuing the protective order by a municipal judge pursuant to N.D.Cent. Code § 14-07.1-08 were met. Therefore, at the time of issuance, Judge Beauchamp had jurisdiction to issue the order against the plaintiff. The court must now determine if, as the plaintiff alleges, the judge lost jurisdiction for failure to certify the order to the district court.

The certification provision of § 14-07.1-08 does not state who has the responsibility of certifying a protective order to the district court. Judge Beauchamp signed the order and gave it to Valery Patten. Ms. Patten apparently took the order to the Clerk of District Court, who certified the order. Contrary to § 14-07.1-08, no district court action was initiated by the certification, nor is there any indication that the district court was notified that the order had been issued. Apparently the Clerk believed that the order only needed to be certified for authenticity purposes. But § 14-07.1-08 requires that the order be “immediately certified to the district court.” In context, it is clear that this provision requires the order to be immediately forwarded to the district court so that a court of general jurisdiction has the opportunity to review the order when the court is again available.

The failure to certify the order to the district court does not, however, result in a loss of jurisdiction. Once the prerequisites are met, a municipal judge has jurisdiction to issue the order. The requirement of certification to the district court is an important procedural step, but it is nonetheless subsequent to the jurisdictional requirements. According to NJD.Cent. Code § 29-01-15(4), a municipal judge has jurisdiction to Issue a protective order “under the particular circumstances and for the limited duration set for in Section 14-07.1-08.” The particular circumstances— unavailability of the district court, good cause, and proper expiration time — had been met in this case. Jurisdiction was not lost by. the failure to certify the order to the district court.

Regardless of who had the responsibility to certify the protective order to the district court, the failure to do so cannot create a cognizable wrong unless 1) it was improper to issue the order (e.g., good cause did not exist) and 2) as a result of a failure to certify the order to the district court, the order was not vacated during the time-period in which it was in force (i.e., the district court would have vacated the order). As stated above, issuing the protective order in this case was proper because there was good cause, the district court was unavailable, and the order lasted no more than 72 hours. In addition, there is no showing by the plaintiff that the district court would have vacated the order if it would have had the opportunity to review the order.

The last issue concerning judicial immunity is whether the act of issuing a protective order is a judicial act. Two factors are employed to determine whether the act was a judicial act: the nature of the act itself (i.e., whether it is a function normally performed by a judge) and the expectations of the parties (i.e., whether they dealt with the judge in his judicial capacity). Stump, 435 U.S. at 362, 98 S.Ct. at 1107. The issuance of a protective order is a function normally performed by a judge, and it is clear that Valery Patten dealt with Judge Beauchamp in his judicial capacity. The act of issuing the order was therefore a judicial act.

Because Judge Beauchamp had jurisdiction over the subject matter and the act involved was a judicial one, I find that the defendant in this case is immune from civil damages in regards to the protective order issued against the plaintiff on May 7, 1982.

Request for Declaratory and Injunctive Relief

Since the order issued by Judge Beau-champ was proper and based on good cause, the plaintiffs various requests for declaratory and injunctive relief {see note 1 infra) are without merit.

Based on the entire file, IT IS ORDERED

1) that defendant’s motion to dismiss the action for lack of subject matter is DENIED; and
2) that defendant’s motion for summary judgment is GRANTED;

LET JUDGMENT OF DISMISSAL ON THE MERITS BE ENTERED ACCORDINGLY.

      . The plaintiff requests 1) a declaratory judgment that the defendant’s act, policy and practice violated the plaintiffs right of due process and equal protection; 2) a "declaratory judgment” prohibiting the defendant and his successors in office from issuing such illegal orders against the plaintiff and other citizens of the United States; 3) a "declaratory judgment” requiring the defendant to submit within ninety days of this court’s order all copies of the protective order and a list of all persons, courts, etc. that received information of the illegal order; 4) a "declaratory judgment” requiring the defendant to submit within ninety days of this court’s order a declaration by the defendant stating by what authority he represented in issuing such order and a declaration to if he received a monetary sum for its issuance; 5) an order from this court that revokes the illegal order; 6) an order from this court that removes the record of the illegal order from all records; 7) 310,000 in damages; 8) an order from this court requiring the defendant to publish in his local newspaper the offense committed by him in the form of a formal apology for his abuse of power and process; 9) an order requiring the defendant to pay for attorneys’ fees and costs; and 10) a jury trial "in this malpractice action.”

      . Patten was subsequently convicted of an assault charge brought by Ms. Shaw.

      . The application also alleged that Patten had previously assaulted Ms. Patten several times.

      . See also Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 776, 39 L.Ed.2d 73 (1974) (test is whether right claimed is "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy”). It is apparent from the Duke Power decision that the Bell test is preferred over, and perhaps supersedes, the Oneida test. See Duke Power, 438 U.S. at 70-71, 98 S.Ct. at 2628-2629.

      . On the other hand, several courts have applied the Supreme Court’s general statements, holding that all judges, regardless of their status in the judicial hierarchy, are immune from suits for damages where the act is a judicial one and there is not a clear absence of jurisdiction. Given the purpose of the doctrine of judicial immunity, this view has great merit. "[Jjudges should be at liberty to exercise their functions with independence and without fear of consequences.” Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868) (emphasis deleted), quoted in Bradley, 80 U.S. (Wall. 13) at 349 n. ‡, 20 L.Ed. 646.
      The United States Supreme Court has had several opportunities to review this issue, and has refused. See, e.g. Turner v. Raynes, 611 F.2d 92 (5th Cir.), cert. denied, 449 U.S. 900, 101 S.Ct. 269, 66 L.Ed.2d 129 (1980); Ammons v. Baldwin, 705 F.2d 1445, 1447 (5th Cir.1983),
        cert. denied, — U.S. -, 104 S.Ct. 999, 79 L.Ed.2d 232 (1984).

      . This case is an excellent example of the need for a more expansive judicial immunity for courts of limited jurisdiction. Although it is possible under one construction of law that the judge acted in excess of his authority, it is clear that he did not act in absence of all jurisdiction. Although it is alleged that the judge acted to accommodate an attorney and his client, it is clear that he had good cause to issue the order and that an additional reason, if any existed, is irrelevant.
      Under the present law-, a judge of limited jurisdiction who issues a protective order is exposed to burdensome litigation no matter how he decides the issue. On one hand, he may fear a suit from the person to be enjoined and delay issuing the order so as to make sure that the district court is unavailable or that there is no doubt that good cause exists. As a result of the delay, the complainant may be harmed and sue the judge for failure to act in a reasonable manner. On the other hand, if the judge acts reasonably and issues the order after ascertaining that good cause exists, he is subject to suit from the person who is enjoined. He must then, if he asserts the affirmative defense of immunity, assume the burden of proving that the district court was unavailable, that there was good cause supporting the issuance of the order, that the order lapsed within the statutory period, and, perhaps, that the order was properly certified to the district court. Either way, the judge is faced with a suit that demands extensive evaluation of factual material, even though the primary action is frivolous.

      . The protection order may be continued by the district court, or by the issuing court in the event of continuing unavailability of the district court.

      . Beauchamp Affidavit at ¶ 3 (Doc. No. 21, Ex. 1); Skalsky Affidavit at ¶ 5 (Doc. No. 14).

      . Application for Emergency Protective Relief (Doc. No. 21, Ex. 2); Beauchamp Affidavit at ¶ 4 (Doc. No. 21, Ex. 1); Skalsky. Affidavit at ¶ 6 (Doc. No. 14).

      . Application for Emergency Protective Relief (Doc. No. 21, Ex. 2); Beauchamp Affidavit at ¶¶ 3-4 (Doc. No. 21, Ex. 1); Quast Affidavit at ¶ 2 (Doc. 21, Ex. 4).

      . Some details relating to the order have not been clarified. According to the Clerk’s file stamp, the document was "filed." But no file was opened, and the document was not indexed. And yet the original was apparently returned to Judge Beauchamp. And the plaintiffs copy of the order does not include a certification stamp. As discussed below, these issues, though troubling, do not affect the final disposition of this suit.

      . The other pending motions have been mooted by the resolution of the motion for summary judgment.


author: KANE, District Judge.

text:
    Justin S. MEYER, Plaintiff, v. Sol Allen STERN, Theodore A. Gould, and Titan Flyers, Inc., a Colorado Corporation, Ronald Webb, Answer All Secretarial Service, Inc., a Colorado corporation, Daniel Romcevich, and Martin Marietta Corporation, a Maryland corporation, Defendants.
    Civ. A. No. 83-K-319.
    United States District Court, D. Colorado.
    Dec. 14, 1984.

      Neil Hillyard, Englewood, Colo., for plaintiff.
    Mary A. Wells, Janice M. Finch, Denver, Colo., for defendants.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

Plaintiff seeks recovery for injuries sustained in an airplane crash near the Arapahoe County Airport, in Colorado, on April 18, 1982. By a document dated July 26, 1984 plaintiff released all claims against other defendants including Titan Flyer’s Inc. The release explicitly reserved claims which plaintiff may have against defendant Martin Marietta Corporation. Pursuant to the release and a stipulation for dismissal with prejudice, the case against all defendants except Martin Marietta was dismissed by Order dated September 11, 1984.

Plaintiff’s claims against Martin Marietta are based upon the allegation that Titan Flyers is an alter ego of Martin Marietta and that Martin Marietta is vicariously liable for the acts of Titan Flyers. By a Memorandum Opinion and Order dated August 17, 1984, I denied Martin Marietta’s motion for summary judgment as to the issue of vicarious liability. I held that the facts did not clearly demonstrate that Martin Marietta was not vicariously liable for Titan Flyer’s actions. Martin Marietta filed a motion for reconsideration repeating the claims alleged in the initial motion for summary judgment. The motion for reconsideration raised no new issues, nor did it show any mistake, omission or misrepresentation compelling my modification of the August 17, 1984 order. Accordingly, the motion for reconsideration was denied. Martin Marietta now moves for certification of my denial of the motion for reconsideration as a final order pursuant to Rule 54(b) or in the alternative certification of that order for consideration on interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

Martin has also filed a second motion for summary judgment arguing that the release of Titan Flyer’s also releases Martin Marietta.

APPEAL OF DENIAL OF MOTION FOR RECONSIDERATION

Rule 54(b) allows entry of final judgment as to isolated claims in cases involving multiple claims or multiple parties. Such entry requires “an express determination that there is no just reason for delay and ... express direction for the entry of judgment.” Fed.R.Civ.P. 54(b). Determination of whether an issue is finally resolved and may be certified for entry of judgment under Rule 54(b) is governed by the same standards of finality applied in determining jurisdiction on appeal under 28 U.S.C. § 1291. To be final, the judgment must be dispositive of the claims against Martin Marietta. See, generally, Wheeler Machinery Co. v. Mountain States Mineral Enterprises, Inc., 696 F.2d 787, 789 (10th Cir.1983). It is axiomatic that denial of a motion for summary judgment does not dispose of the case and that issues remain for resolution. As Justice Douglas stated: “[t]he denial of a motion for summary judgment because of unresolved issues of fact does not settle or even tentatively decide anything about the merits of the claim. It is strictly a pretrial order that decides only one thing — that the case should go to trial.” Switzerland Cheese Ass’n v. Horne’s Market, Inc., 385 U.S. 23, 25, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966). The motion for entry of final judgment under Rule 54(b) is, therefore, denied.

While certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) does not require a final judgment, such certification is inappropriate here. Certification is appropriate only if I find that my denial of the motion for reconsideration “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate determination of the litigation....” 28 U.S.C. § 1292(b). I denied summary judgment because the facts presented did not clearly show that Martin Marietta was not the alter ego of Titan Flyer’s. Martin Marietta’s motion for reconsideration did not question the law of vicarious liability applied in the earlier Memorandum Opinion and Order, inasmuch as there is little, if any, dispute as to the applicable law. A denial of a motion for summary judgment where the applicable law is clear, but there remains a genuine issue as to material fact, should not be certified for interlocutory appeal under § 1292(b). See Chappell & Co. v. Frankel, 367 F.2d 197, 200 n. 4 (2d Cir.1966); Rypkema v. Bowers, 66 F.R.D. 564, 569-79 (N.D. W.Va.1974).

SECOND MOTION FOR SUMMARY JUDGMENT

Martin bases its second motion for summary judgment on the proposition that a release of claims against Titan Flyer’s also releases Martin Marietta from any derivatively based liability. Certainly, if the party who is primarily liable is absolved by a judgment on the merits, an action based upon secondary or vicarious liability must also fail. See Flournoy v. Sayles, 37 Colo. App. 67, 544 P.2d 649, 652 (1975).

The effect of a release and dismissal with prejudice is not as clear. Both parties agree that Colorado law should be applied in determining liability. Although the Colorado courts have not dealt with the precise issue here, their rulings in similar cases provide ample guidance in my determination of the appropriate legal standard. See Hiatt v. Schreiber, 599 F.Supp. 1142 at p. 1145 n. 1 (D.Colo.1984) and cases cited therein. In Dworak v. Olson Contr. Co., 191 Colo. 161, 551 P.2d 198 (1976) plaintiff brought suit against an employer, on a theory of vicarious liability based upon respondeat superior, for injuries sustained when he was struck by a vehicle operated by an employee of the employer. The plaintiff had previously entered into a covenant not to sue the employee. The Colorado Supreme Court held that the covenant not to sue did not bar the subsequent suit against the employer based on a theory of derivative liability. Unlike Meyer’s release here, the covenant in Dworak did not contain any reservation of right to proceed against the derivative party.

Martin Marietta tries to distinguish this case from Dworak by arguing that a covenant not to sue and a release must be interpreted differently. Under an antiquated common law view Martin Marietta’s proposition is correct. A covenant not to sue released only claims against the parties to the covenant but did not release claims against other tort-feasors. Conversely, a release of one tort-feasor would release all. More recently, however, Colorado law has moved from such formalisms. It recognizes that a release with express provisions reserving the right to sue other tort-feasors will be given the effect intended by the parties. “[Wjhen from the very nature of the transaction the intent to preserve the right to sue other tort-feasors is apparent, the intent of such agreement will be given the same effect as if it were a pure covenant not to sue.” Farmers Elevator Co. of Sterling v. Morgan, 172 Colo. 545, 549, 474 P.2d 617 (1970). See also Mills v. Standard Title Ins. Co., 195 Colo. 281, 283, 577 P.2d 756 (1978). Moreover, in an analogous context, Colorado statutes now provide that “a release given to one or more persons liable in tort for the same injury ... does not discharge any of the other tortfeasors ... unless its terms so provide.” Colo.Rev.Stat. § 13-50.5-105 (1984 Cum.Supp.).

The parties to the release clearly intended to reserve any extant rights against Martin Marietta and Colorado law requires that I enforce such intent. The release of Titan Flyer’s does not effect the liability of Martin Marietta. Although, I do not decide whether any recovery from Martin Marietta would be set-off by the recovery from the other original defendants.

ACCORDINGLY, IT IS ORDERED THAT:

1. Martin Marietta’s motion for entry of final judgment or certification for interlocutory appeal is denied; and

2. Martin Marietta’s second motion for summary judgment is denied.

      . A typographical error on line 18, page 2 of the August 17, 1984 order should be corrected to read as follows: “159 F.Supp. 693, 696-98 (D.Colo.1958) (Arraj, J.). This is the”