author: ALLEN, Chief Judge.

text:
    Larry Wayne LOGSDON, Petitioner, v. Gean SCROGGY, Attorney General of Kentucky, Respondent.
    Civ. A. No. C 84-0390 L(A).
    United States District Court, W.D. Kentucky, Louisville Division.
    Sept. 27, 1984.
    Larry Wayne Logsdon, pro se.
    William E. Doyle, Asst. Atty. Gen., Frankfort, Ky., for defendant.
   MEMORANDUM OPINION

ALLEN, Chief Judge.

Larry W. Logsdon brings this petition seeking a writ of habeas corpus. 28 U.S.C. § 2254. Logsdon seeks to attack his guilty plea to three (3) counts of Armed Robbery on February 3, 1975. This guilty plea is the basis for Logsdon’s guilty plea to one count of first degree persistent felony offender (PFO) on March 12, 1981. In essence, Logsdon seeks to attack his PFO sentence by attacking the underlying conviction. The Commonwealth moves to dismiss, arguing that Logsdon has waived any opportunity to raise this issue by failing to raise it in the 1981 proceedings. See, e.g., Alvey v. Commonwealth, 648 S.W.2d 858 (Ky.1983); Copeland v. Commonwealth, 415 S.W.2d 842 (Ky.1967); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Gayes v. State of New York, 332 U.S. 145, 67 S.Ct. 1711, 91 L.Ed. 1962 (1947). After due consideration, we sustain the motion to dismiss.

We need only a brief review of the facts. Logsdon pled guilty to three counts of armed robbery on February 3, 1975. He was convicted of second degree escape on November 1, 1976. Subsequently, Logsdon obtained a parole, but on November 21, 1980, the Jefferson County Grand Jury indicted him for armed robbery. Logsdon pled guilty to that offense, and to one count of first degree PFO on March 12, 1981. On both occasions, Logsdon was represented by counsel.

In 1982, Logsdon decided to attack his 1975 guilty plea. On June 10th of that year, he filed a motion under RCr 11.42 and/or CR 60.02 claiming that his 1975 plea was invalid. Logsdon alleged ineffective assistance of counsel and unawareness of the language of the indictment. On June 18th, the trial court overruled the motion, treating it as a CR 60.02 motion, and overruled Logsdon’s request for the appointment of counsel on the motion, and his request for an evidentiary hearing. The Kentucky Court of Appeals dismissed Logsdon’s appeal and the Kentucky Supreme Court affirmed. This action followed.

Kentucky law clearly holds that any attack on a prior conviction which is used to enhance a sentence or to designate the defendant as a habitual offender must be made prior to the imposition of the enhanced sentence. In other words, in order to attack the sentence or conviction used as the basis for a PFO sentence, the defendant must raise any claims concerning the infirmities of the underlying conviction during the PFO hearing. Otherwise, the defendant is thereafter barred from raising those claims. Alvey v. Commonwealth, 648 S.W.2d 858 (Ky.1983); Ray v. Commonwealth, 633 S.W.2d 71 (Ky.App.1982); Thomas v. Commonwealth, 437 S.W.2d 512 (Ky.1969); Copeland v. Commonwealth, 415 S.W.2d 842 (Ky.1967).

Thus, under Kentucky law, Logsdon should have raised his claims concerning his lack of assistance and his lack of understanding of the indictment at the 1981 sentencing on the PFO count. In view of this longstanding Kentucky practice, and the fact that Logsdon was represented by counsel, we cannot say that Logsdon did not have notice of this requirement.

We now turn to the question of whether this action is the type of action which the Supreme Court barred in Wainwright v. Sykes, supra. The Wainwright Court held that a federal habeas court must require compliance with a state court “contemporaneous objection” rule which waived all objections which could have been raised but were not raised at trial. Wainwright is applicable to this case. Logsdon could have raised any objections in 1981 that he raises now. Instead, he failed to do so. We find that this situation is one of the situations which Wainwright was designed to prevent. Had Logsdon raised his objections at that time, the trial court may have been able to resolve some of the issues in Logsdon’s favor, or at least add some factual insight which would assist a reviewing court or a federal habeas court. Instead, Logsdon “slept” on his rights and failed to assert them. We find that he is barred from raising them now.

Furthermore, we find this case similar to Gayes v. State of New York, supra. In Gayes, an indigent youth pled guilty to a misdemeanor offense in 1938. In 1941, he was arrested and sentenced for another crime and given an additional sentence for being a “second offender.” He then filed an application to vacate the 1938 sentence as a means to attack his “second offender” status. The Supreme Court held that since he had the ability to attack the 1938 guilty plea in his 1941 sentencing, he was barred from attacking the 1941 conviction on federal Constitutional grounds.

Subsequent courts have interpreted Gayes as standing for the proposition that a petitioner may not collaterally attack a sentence which a subsequent court has used to enhance a second sentence when he could have raised those grounds before the second court. E.g., United States v. Moore, 166 F.2d 102, 105 (7th Cir.1948). Likewise, federal courts have distinguished Gayes and have allowed relief, either habeas corpus or coram nobis, when the petitioner was not allowed to attack the prior proceeding in the second court. E.g., Farnsworth v. United States, 232 F.2d 59, 61, n. 2 (D.C.Cir.1956); United States v. Lavallee, 306 F.2d 417, 419, n. 3 (2nd Cir. 1962). Thus, under Gayes, this Court would have jurisdiction if Kentucky would not have allowed Logsdon to attack his 1975 guilty plea during his 1981 PFO sentencing procedure.

However, as we noted earlier, Kentucky not only allows Logsdon to raise this issue at the PFO sentencing, Kentucky requires him to raise this issue at that time or else waive it. Therefore, we find that Logsdon has waived his right to contest his 1975 guilty pleas and is barred from raising them in this Court on a petition of habeas corpus.

We will enter a judgment dismissing this case.


source: Caselaw Access Project

author: CHARLES SCHWARTZ, Jr., District Judge.

license: Public Domain

text:
    Castelo RIVERA v. OFFSHORE CREWS, INC., et al.
    Civ. A. No. 83-4187.
    United States District Court, E.D. Louisiana.
    Sept. 27, 1984.
    John Paul Massicot, New Orleans, La., for plaintiff.
    W.K. Christovich and Michael Christovich, New Orleans, La., for defendant Offshore Crews.
   ORDER AND REASONS

CHARLES SCHWARTZ, Jr., District Judge.

This matter came before the Court on motion of defendant, Offshore Crews, Inc., to dismiss plaintiff’s claims on the grounds that this Court lacks subject matter jurisdiction or, in the alternative, on the grounds of forum non conveniens. Considering the memoranda filed by the parties, the oral argument, the record, and the applicable law, the Court denies defendant’s Motion to Dismiss and/or Summary Judgment.

Defendant’s first contention, that the Court lacks subject matter jurisdiction, is misplaced. Because plaintiff alleges that he sustained injuries on navigable waters in connection with the navigation of defendant’s vessel, the M/V TROPIC SEAHORSE, admiralty jurisdiction is present. Sosa v. M/V LAGO IZABAL, 736 F.2d 1028, 1031 (5th Cir.1984).

Defendant’s second contention, that this Court should dismiss plaintiff’s complaint on the ground of forum non conveniens, requires consideration. In order to determine whether dismissal is proper for forum non conveniens, the Court must first determine whether American or foreign law is applicable. Diaz v. Humbolt, 722 F.2d 1216, 1217, (5th Cir.1984). If it is determined that United States law is applicable, the court “should entertain the suit” and not dismiss the action on the basis of forum non conveniens. Id. Admiralty choice of law is determined by a list of factors, set forth in the Supreme Court cases of Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953) and Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). These factors are: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured party; (4) the allegience of the defendant shipowner; (5) the place of the contract; (6) the inaccessibility of the foreign forum; (7) the law of the forum; and (8) the shipowner’s base of operations.

In the instant case, the parties agree that the M/V TROPIC SEAHORSE was an American flag vessel. This “fact alone can be paramount, compelling a finding of American law.” Koke v. Phillips Petroleum Co., 730 F.2d 211, 218 (5th Cir.1984) (citing Lauritzen, 345 U.S. at 585, 73 S.Ct. at 929). However, because this case involves offshore oil and gas exploration and production activities, other factors, such as the place of the wrong, the allegiance or domicile of the injured worker, and the place of the contract take on a great significance. See Chiazor v. Transworld Drilling Company, Ltd., 648 F.2d 1015 (5th Cir.1981), cert. denied, 455 U.S. 1019, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982).

In the instant case, the place of the wrong was Nacital, Mexico, the plaintiff’s domicile and/or country of citizenship was Mexico or Honduras, and the place of contract was the United States. Mexican, and/or foreign forums are open to the plaintiff.

The Court also finds that the United States is the base of operations of defendant, Offshore Crews, Inc. Plaintiff was hired in the United States. He worked on an ordinary crew boat, not a special purpose vessel, that was owned directly by a United States corporation without the interposition of a foreign subsidiary. Plaintiff’s employment contract called for payment in United States dollars, and made some reference to the application of United States’ general maritime law. Prior to employment plaintiff received a physical from defendant’s physicians in the United States. Employment records and payroll originated in and were maintained in the United States. After plaintiff was injured, and upon defendant’s request, he received medical treatment from defendant’s physicians here in the United States. The charter agreement under which the TROPIC SEAHORSE was operating at the time of plaintiff’s alleged injury points out that the TROPIC SEAHORSE also had operational contacts with the United States. The vessel was built in the United States but, more importantly, the agreement between the parties selected Morgan City, Louisiana as the TROPIC SEAHORSE’S “designated port” — the port at which the vessel was to be delivered at the beginning and end of the charter. Thus, while some day-to-day operations no doubt occurred in Mexico, the company’s base of operations was the United States.

The Court notes that the weight to be accorded to any of the eight factors in Lauritzen and Rhoditis must be considered in the totality of the circumstances of the particular case. The substantial and continuing contacts set out herein indicate the base of operations was in the United States, and outweighs any interest which might be served by litigating this case in Mexican courts. American law being applicable, dismissal for forum non conveniens is not proper. Chiazor, 648 F.2d at 1018. Accordingly, defendant’s motion is DENIED.

      . The TROPIC SEAHORSE was owned by Seahorse Inc., a Louisiana corporation, and, at the time of the alleged accident, was under charter to Construcciones Marítimas Y Terrestres Altamira, S.A. ("Comater”), a Mexican corporation. Plaintiff was employed directly by a U.S. corporation, and paragraph 7.2 of the charter agreement between the parties provided:
      neither the Owner [Seahorse] nor the Owner’s ... employees, nor the crew of the Vessel [TROPIC SEAHORSE] are servants, agents, or employees of Charterer [Comater]. The performance of the Work and the operations, navigation, management and control of the Vessel shall be subject to Charterer’s approval, but the method and manner of conducting same shall at all times be under Owner’s control and direction. Charterer being interested only in the completed performance of the Work and compliance with this Agreement.

        Id. ¶ 7.2

      . The location of medical attention is a factor to be considered by the Court in its choice of law determination. See Koke, 730 F.2d at 220.

      . The Court is cognizant of the fact that the vessel in question is not one normally "plying the waters of the world;” neither, however, is it a special purpose vessel permanently or semi-permanently stationed in one offshore location. The TROPIC SEAHORSE is a 176 foot, 2220 horse power crew boat with a crew of eight. See Exhibits A & C to Agreement between Comater and Seahorse, Inc., (May 10, 1981). Further, plaintiffs contract provided that he was to be assigned to any vessel (wherever needed) in the waters of, or en-route to Mexico, and that he could be reassigned upon 24 hour notice to another vessel and area of assignment. Marine Work Agreement between Castelo Rivera and Offshore Crews, Inc., (Sept. 25, 1980) ¶ 3. "Assignment" (emphasis added). This language points out that, unlike cases of special purpose vessels, plaintiffs injury in Mexico on the TROPIC SEAHORSE is to some degree fortuitous.

      . Unlike other decisions of this Court (Fajardo v. Tidewater, Inc., 707 F.2d 858 (5th Cir.1983) (affirming Schwartz, J. on the basis of the District Court’s opinion) (per curiam)) and Circuit (See, e.g., De Oliveira v. Delta Marine Drilling Co., 707 F.2d 843 (5th Cir.1983)), transferring or dismissing claims of foreign seamen injured in offshore oil and gas exploration and production in territorial waters of other nations, this case presents several significant factual distinctions.


author: HATFIELD, District Judge.

text:
    John W. McFARLAND, Plaintiff, v. FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, Defendant.
    No. CV-82-103-M.
    United States District Court, D. Montana, Missoula Division.
    Sept. 27, 1984.

      Larry R. Meyer, Stevensville, Mont., for plaintiff.
    Donald V. Snavely, Missoula, Mont., for defendant.
   OPINION AND ORDER

HATFIELD, District Judge.

This action involves a question of coverage under a title insurance policy issued by Defendant First American Title Insurance Company (First American) to Plaintiff John McFarland (McFarland) in connection with his purchase in December of 1980 of a tract of acreage near Clinton, Montana. Presently before the court are (1) a motion by McFarland for leave to amend the complaint, and (2) cross-motions for partial summary judgment and a request by First American for oral argument on these cross-motions.

BACKGROUND

Watson and Artie Hancock (the Han-cocks) own real property adjoining McFarland’s property. At one time, some or all of the Hancocks’ property and McFarland’s property were owned by S.S. Elliott. On June 29, 1981, the Hancocks filed an action in Montana state court against various defendants, including McFarland. The Han-cocks alleged among other things that they own a water ditch easement across McFarland’s property.

A title insurance policy issued by First American to McFarland in December of 1980 did not list the ditch easement claimed by the Hancocks. On May 24, 1982, McFarland notified First American of the Hancock action and demanded that First American defend and indemnify him under the terms of the title insurance policy. McFarland informed First American that the Hancocks’ easement claim was based in part on a document entitled “Notice of Appropriation” executed by S.S. Elliott and filed with the Missoula County Clerk and Recorder on September 14, 1905. First American refused to defend or indemnify McFarland, claiming that the Hancocks' claim was based solely on a prescriptive use theory which was excluded from coverage by the insurance policy.

McFarland filed a third-party complaint against First American, alleging that First American breached its duty to defend McFarland by failing to defend him in the Hancock litigation, that First American has a duty to indemnify McFarland in the event that McFarland is found liable in the Hancock litigation, and that First American was negligent as a matter of law in failing to disclose in the insurance policy the existence of the ditch easement claimed by the Hancocks. The entire action was removed to federal court. The principal action brought by the Hancocks was remanded to state court, but the federal court retained jurisdiction over the action between McFarland and First American.

In May or June of 1983, First American agreed to defend McFarland in the Hancock litigation. First American claimed that it agreed to do so only because it had been led to believe that the Hancock action could be quickly settled for a minimal amount. First American reserved its rights to later challenge its lack of any duty to defend or indemnify McFarland. McFarland had paid $1,500 in attorney’s fees and costs on his defense in the Hancock litigation prior to the time that First American assumed his defense.

In January of 1984, First American settled the Hancock easement claim for $4,000. As a part of the settlement, McFarland was not required to waive any of his claims against the Hancocks. The Hancocks agreed to quitclaim any interest they had in McFarland’s property to First American and to assign all of their rights in the Hancock litigation to First American. First American agreed that it would tender all of those rights to McFarland to pursue as he saw fit. The effect of the settlement was to remove from McFarland’s property any cloud upon his title created by the Hancocks’ ditch easement claim. First American disputed that it had a duty to defend or indemnify McFarland and reserved the right to contest this fact. Left pending in the state court action was McFarland’s claim for rescission against his sellers based upon failure to convey clear and marketable title.

MOTION FOR LEAVE TO AMEND COMPLAINT

McFarland moves for leave to amend the complaint pursuant to Fed.R.Civ.P. 15(a). The proposed complaint sets forth several facts regarding First American’s conduct toward McFarland and his claims since the filing of McFarland’s initial complaint. The proposed complaint also adds a claim for damages for McFarland’s emotional distress incurred as a result of the alleged negligent failure of First American to notice the claimed easement or advise McFarland of such. The proposed complaint also adds a claim for relief alleging violation of First American’s duty to act in good faith with respect to McFarland and his claims and requests an award of compensatory and punitive damages.

First American argues that McFarland’s motion to amend should be denied because the motion will have an unduly burdensome effect on the course of this action. Since a bad-faith claim against an insurance company puts in issue the insurance company’s conduct and motives, the attorneys may be called as witnesses. First American argues that, if the court grants McFarland’s motion, then both its attorney and McFarland’s attorney would be forced to withdraw immediately from the case, and both parties would be forced to hire new attorneys. This would impose additional expense on the parties and undoubtedly delay resolution of this action.

The additional claims advanced by McFarland in his proposed amended complaint are supported by the facts as alleged. Furthermore, First American’s argument is unconvincing. The fact that the attorneys for both parties could be called as witnesses at trial does not justify refusing to allow McFarland to properly advance his claim.

IT IS THEREFORE ORDERED that McFarland’s motion for leave to amend the complaint is granted.

CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT

As to First American’s duty to defend:

The insurance policy states that First American shall defend McFarland “in all litigation consisting of actions or proceedings commenced against [McFarland] ... to the extent that such litigation is founded upon an alleged defect, lien, encumbrance, or other matter insured against by this policy.” The policy provides that, subject to the listed exclusions, First American insures to the extent of $162,000 against loss or damage incurred by reason of “any defect in or lien or encumbrance on such title” or by reason of “unmarketability of such title.” The policy further provides, however, that it does not insure against loss or damage by reason of any “claims which are not shown by the public records but which could be ascertained by an inspection of said land or by making inquiry of persons in possession thereof” or by reason of “[e]asements, claims of easement or encumbrances which are not shown by the public records.” Reading the policy coverage provisions together with the exclusion language, it is clear that the policy provides coverage against any right or easement shown by the public records. Thus the existence of First American’s duty to defend turns on whether the easement claimed by the Hancocks is shown by the public records.

McFarland claims that the alleged ditch easement is shown by two public records. The first is a document entitled “Notice of Appropriation” executed by S.S. Elliott and filed with the Missoula County Clerk and Recorder on September 14, 1905. This instrument was filed to perfect a water right in the Hellgate River (now the Clark Fork River) and contains the following provisions:

That the means of diversion ... is as follows: A 6 ft. by 4 ft. Ditch in size, which carries and conducts 1000 inches of water from Hell Gate River ____ That I also hereby claim said ditch and the right of way therefor____
That I also claim the right to keep in repair and to enlarge said means of water appropriation at any time, and the right to dispose of said right, water, ditch or said appurtenances in part or whole at any time.

The second instrument relied upon by McFarland is an agreement executed between Lee Elliot and C.L. Gaiser on September 17, 1919, and filed on October 4, 1919. The agreement provides for the maintenance of an irrigation ditch. Although the agreement does not contain a legal description, it describes the ditch as the one which carries the water “appropriated by S.S. Elliot, on the 14th day of September, 1905, and which water right is recorded in Book F Water Rights at Page 161, in the records of Missoula County, Montana____” The agreement further indicates that there are several owners of the ditch and refers to Elliott as the “principal owner.”

The Hancocks relied on both the Notice of Appropriation and the ditch maintenance agreement to establish their ditch easement claim in the state court action.

First American concedes that the Notice of Appropriation and the ditch maintenance agreement affect McFarland’s property and that the remains of an old water ditch do cross McFarland’s property. First American contends, however, that it was not obligated to assume McFarland’s defense in the Hancock litigation because McFarland did not éstablish “by undisputed evidence that the water ditch described in the Notice of Appropriation and Ditch Maintenance Agreement is the very same water ditch which was the subject of the Hancocks’ claims in the related state court litigations.”

First American’s contention is without merit. First American’s duty to defend was not conditioned upon a showing of the validity of the Hancocks’ claim — that was the issue of the state court action that First American allegedly had a duty to defend. The duty to defend exists whether or not the adverse claim has merit. The title insurer must assume that the allegations of the adverse claimant have merit in deciding whether to defend. If the claim does not have merit, the insurer still bears the risk of paying the litigation costs to establish the lack of merit to the adverse claim. See generally 14 M. Rhodes, Couch on Insurance 2nd § 51:42 (rev. ed. 1982). See also St. Paul Fire & Marine Insurance Co. v. Thompson, 150 Mont. 182, 188, 433 P.2d 795, 798-99 (1967). Accordingly First American’s duty to defend arose at the time that it was notified that the Hancocks were claiming an easement on McFarland’s property based on the recorded Notice of Appropriation.

First American also contends that the documents are legally insufficient to create a valid ditch easement across McFarland’s property and accordingly are excluded from coverage. First American further contends that the only possible basis for the Hancock easement claim is one of prescriptive use, which is also excluded from coverage.

Again, First American’s contentions are without merit. The policy does not provide that an alleged easement must be “created” by the public records. Nor does the policy provide that it covers only express, as opposed to prescriptive, easements. The policy states only that it does not cover easements which are not “shown” by the public records. The Montana Supreme Court recently held that a title insurance policy containing similar language provided coverage against a claimed easement which was based on a right that was sufficiently mentioned in documents of record. In Lipinski v. Title Insurance Co., Mont., 655 P.2d 970 (1982), the court affirmed a district court judgment which had awarded damages against a title insurance company. The judgment was based upon the insurer’s failure to determine and disclose certain ditch right easements to the insured and its failure to defend the insured in lawsuits brought as a result of those undisclosed rights. A 1944 warranty deed in the insured’s chain of title recited that the grant was “subject to rights established by irrigation ditch.” Id. 655 P.2d at 974. The insurer failed to note this exception on the policy and to take any further action to determine the existence of the irrigation ditch or claimed easement. The court held that this recital was sufficient to put the insurer on notice that a duty was imposed to examine further the nature of the right and to disclose such to the insured. The court stated the following:

The question is whether this recital put the title companies sufficiently on notice that a duty was imposed to further determine the nature of that right recited in the deed. The policy expressly excludes coverage for "... easements ... not shown by the public records ...” Because the warranty deed recital did not state that an easement existed, the title companies argue that the policy does not insure against that undisclosed easement. We hold, however, that the ditch rights were sufficiently mentioned in the recorded 1944 warranty deed to put the title companies on notice that there might also be easements accompanying those ditch rights. These possibilities should have been brought to Lipinski’s attention and either specifically insured or specifically excluded from insurance coverage.

Id.

In the present case, a ditch and its accompanying rights and duties were sufficiently mentioned in both the recorded 1905 Notice of Appropriation and in the water ditch maintenance agreement to put First American on notice that there might also be easements accompanying those ditch rights. These possibilities should have been brought to McFarland’s attention and either specifically insured or specifically excluded from insurance coverage.

First American also contends that, even if it is established that First American had a duty to defend McFarland and that First American breached that duty, McFarland’s claim still has no merit for two reasons.

First, First American argues that the language of the title insurance policy precludes such a claim. The policy provides that “[n]o claim shall arise or be maintainable under this policy (a) if [First American], after having received notice of an alleged defect, lien or encumbrance insured against hereunder, by litigation or otherwise, removes such defect, lien or encumbrance or establishes the title, as insured, within a reasonable time after receipt of such notice ____” First American argues that once it assumed McFarland’s defense it settled the Hancock claim as soon as possible. First American further argues that it was the Hancocks’ unrealistic view as to the merit of their claim that delayed the settlement as long as it did.

The weakness with First American’s argument is that First American refused to assume McFarland’s defense until after McFarland filed an action against First American demanding that it do so. Even so, First American did not agree to assume the defense until a year after it was notified of the Hancock action. Under the facts of this case, it cannot be said that First American removed the defect from McFarland’s title “within a reasonable time after receipt of such notice.” Accordingly, the policy limitation does not preclude McFarland’s claim.

Second, First American argues that McFarland’s claim fails because he can show no damages from the alleged breach of duty to defend because First American (1) eventually did assume McFarland’s defense in the Hancock litigation, (2) removed the cloud from McFarland’s title, and (3) now offers to reimburse McFarland for the $1,500 that he paid in attorney’s fees and costs before First American assumed his defense.

This argument is also without merit in light of the fact that First American disputes that it has a duty to defend or indemnify McFarland and reserved the right to contest any such obligations.

In conclusion, First American had a duty to defend McFarland in the Hancock action. First American breached that duty when it failed to assume McFarland’s defense within a reasonable time after receiving notice that the Hancocks claimed a ditch easement based on the recorded Notice of Appropriation.

IT IS THEREFORE ORDERED that McFarland’s motion for partial summary judgment on this issue is granted.

As to First American’s duty to indemnify:

As a general rule, the duty to indemnify exists only if the adverse claim is established. 14 M. Rhodes, Couch on Insurance 2nd § 51:42 (rev. ed. 1982). The validity of the Hancocks’ adverse claim was the issue in the state court action. In January of 1984, however, First American settled the Hancocks’ adverse claim for $4,000. First American denies that in settling it admitted the validity of the Hancocks’ claim. Rather First American claims that it settled the Hancocks’ claim simply for economic reasons, i.e., it was far cheaper to pay the Hancocks $4,000 than to pay for McFarland’s defense in the Hancock litigation and at the same time take the risk that the Hancocks would succeed on their claims against McFarland.

As was previously stated, First American had a contractual duty to defend McFarland in the Hancock litigation. The position of McFarland, and thus First American, was that the Hancocks’ adverse claim had no merit. By settling the Hancocks’ claim for its own economic reasons, First American deprived McFarland of its defense in proving the invalidity of the Hancocks’ claim. For purposes of this motion, First American is now estopped from denying that the Hancocks’ adverse claim has been established.

IT IS THEREFORE ORDERED that McFarland’s motion for partial summary judgment on this issue is granted, and First American’s motion for partial summary judgment is denied.

As to the issue of negligence:

—First American’s motion:

First American moves for partial summary judgment on McFarland’s claim that First American was negligent in failing to disclose in the insurance policy the existence of the ditch easement claimed by the Hancocks.

First American contends that it could not have been negligent in failing to disclose the claimed easement because it had no duty to disclose the existence of the claimed water ditch easement. As discussed above, First American did have a duty to disclose the claimed easement. Accordingly, First American’s contention is without merit.

First American also contends that McFarland’s claim for breach of contract is inconsistent with his claim for negligence. First American contends that, if the court determines that First American had a duty to disclose the easement claimed by the Hancocks, then First American is contractually obligated to provide coverage without regard to negligence. First American points to the following language in the title insurance policy in support of its contention that the policy precludes McFarland from asserting a claim in negligence:

Any claim of loss or damage, whether or not based on negligence, and which arises out of the status of the title to the estate or interest covered hereby or any action asserting such claim, shall be restricted to the provisions and conditions and stipulations of this policy.

(Emphasis added).

An insured is entitled to bring an action against a title insurer for loss sustained because of the insurer’s negligence in the performance of its duties under the title insurance policy. Quigley v. St. Paul Title Insurance & Trust Co., 60 Minn. 275, 62 N.W. 287 (1895). See also Demopoulous v. Title Insurance Co., 61 N.M. 254, 298 P.2d 938 (1956). The language of the policy in the present case does not preclude a claim in negligence.

IT IS THEREFORE ORDERED that First American’s motion as to this issue is denied.

—McFarland’s motion:

McFarland, relying on Lipinski, Mont., 655 P.2d 970, moves the court for a ruling that First American was negligent as a matter of law in failing to disclose in the insurance policy the existence of the ditch easement claimed by the Hancocks. In Lipinski the court stated:

A title company, as insurer, owes its clients the duty of conducting a title search with reasonable care. Although liability .does not attach for failure to discover defects which cannot be discovered with reasonable care, here a title examiner conducting a title search should have been alerted to the possible consequences of the recital in the 1944 warranty deed. An examination of the premises should have revealed the very real possibility that an easement existed to give effect to the irrigation ditch recital in the 1944 warranty deed. Examination would have revealed that water on Lipinski’s property was being dammed and conducted away from his land through irrigation pipes or canals leading onto a neighbor’s land.

Id. 655 P.2d at 974.

It cannot be said on the facts before the court in the present case that an examination of the premises should have revealed the very real possibility that a ditch easement existed. There is evidence from which a jury could find that an examination of the property would have revealed little or nothing of the existence of a ditch. In any event a fact issue exists as to what an examination would have revealed.

IT IS THEREFORE ORDERED that McFarland’s motion on this issue is denied.

The parties have adequately briefed these cross-motions, and oral argument is unnecessary. Accordingly, First American’s request for such an argument is also denied.


author: GENE CARTER, District Judge.

text:
    Richard P. HASKELL, Plaintiff, v. C. Wesley PHINNEY, Jr., and the County of York, Defendants.
    Civ. No. 83-0225 P.
    United States District Court, D. Maine.
    Sept. 28, 1984.

      Lawrence C. Winger, Portland, Me., for plaintiff.
    Michael E. Saucier, Alfred, Me., William C. Knowles, Andrew M. Horton, Portland, Me., for defendants.
   ORDER OF THE DISTRICT COURT ACTING UPON THE MAGISTRATE’S REPORT OF HEARING ON DEFENDANTS’ MOTION TO STAY AND RECOMMENDED DECISION ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

GENE CARTER, District Judge.

In this matter a hearing has been had before the Hon. D. Brock Hornby, United States Magistrate, on the Defendants’ Motion to Stay and upon the Defendants’ Motion for Summary Judgment. The United States Magistrate has considered the written and oral arguments of counsel upon said motions. The United States Magistrate filed with the Court on June 8, 1984, with copies to counsel, his Report of Hearing on Defendants’ Motion for Stay and Recommended Decision on Defendants’ Motion for Summary Judgment. He therein took the following actions:

(1) denied the Defendants’ Motion to Stay the action; and
(2) recommended the following actions to the District Court:
(a) that the District Court deny the Defendants’ Motion for Summary Judgment as to the issue of the qualified immunity of the Defendant-Sheriff, C. Wesley Phinney, Jr.;
(b) that the District Court grant the Defendant York County’s Motion for Summary Judgment on the basis of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), as to Count I of the complaint;
(c) that the District Court deny the Defendant York County’s Motion for Summary Judgment on the basis of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), as to Count II of the complaint;
(d) that the District Court deny the Defendants’ Motion for Summary Judgment insofar as it reaches the Defendants’ asserted ground that procedural due process has been fully afforded to the Plaintiff under Maine law; and
(e) that the District Court order stricken the Plaintiffs prayer for an award of punitive damages.

Plaintiff timely filed his objection to the Magistrate’s partial grant of the -Defendants’ Motion for Summary Judgment, stating in his formal written objection that objection was taken only to “that portion [of the Magistrate’s Report and Recommended Decision] appearing on pages 6-9 [642-643] recommending the granting of the County of York’s Motion for Summary Judgment on Count I of the Complaint.” Plaintiff’s Objection to Magistrate’s Partial Grant of Motion for Summary Judgment, at 1. The Defendants timely filed their objections to the Magistrate’s Report and Recommended Decision, registering objection to “that portion of the Magistrate’s Report of June 8, 1984, appearing at page 6 [640] and recommending the denial of Sheriff C. Wesley Phinney, Jr.’s motion for summary judgment on Count II of the amended complaint.” Defendants’ Objection to Magistrate’s Partial Denial of Motion for Summary Judgment, at 1.

It thus appears that none of the parties have objected to the Magistrate’s action in denying the Motion of the Defendants to Stay this action, to the Magistrate’s recommended decision that the Plaintiff’s prayer for an award of punitive damages be stricken by this Court, or finally, to the Magistrate’s recommendation to this Court that the Defendants’ Motion for Summary Judgment be denied insofar as it asserts that procedural due process has been fully afforded to the Plaintiff under Maine law. The Court will approve the Magistrate’s Report and Decision and affirm the Magistrate’s denial of Defendants’ Motion to Stay this action, and accept the Magistrate’s Recommended Decision that the Plaintiff’s prayer for an award of punitive damages be stricken, and will deny the Defendants’ Motion for Summary Judgment on the ground that procedural due process has been fully afforded to the Plaintiff under Maine law. See 28 U.S.C. § 636(b)(1)(C).

The Court has reviewed and considered the Magistrate’s recommended decisions insofar as they have been objected to by the parties herein, together with the entire record, including the written objections of the parties to the Magistrate’s recommended decisions and the memoranda submitted by counsel before the Magistrate and this Court. The Court has made a de novo determination of all matters adjudicated by the Magistrate’s recommended decision to which objection has been made. This Court concurs with the recommendations of the United States Magistrate to the extent that objections thereto have been registered, for the reasons set forth in his report, and having determined that no further proceeding is necessary, it is

ORDERED AS FOLLOWS:

(1) that the Report and Recommended Decision of the Magistrate be, and is hereby, APPROVED;
(2) that the Defendants’ Motion to Stay this action be, and is hereby DENIED;
(3) that the Plaintiff’s prayer for an award of punitive damages be, and is hereby, STRICKEN;
(4) that the Defendants’ Motion for Summary Judgment on the ground that procedural due process has been fully afforded to the Plaintiff under Maine law be, and is hereby, DENIED;
(5) that the Defendant-Sheriff, C. Wesley Phinney, Jr.’s, Motion for Summary Judgment on the basis of the issue of his qualified immunity be, and is hereby, DENIED;
(6) that the Defendant York County’s Motion for Summary Judgment on the basis of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), be, and is hereby, GRANTED as to Count I and DENIED as to Count II of the Plaintiffs complaint;
(7) that this matter be REMANDED to the Magistrate for such further action as may be appropriate.

So ORDERED.

APPENDIX

REPORT OF HEARING ON DEFENDANTS’ MOTION TO STAY AND RECOMMENDED DECISION ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

The plaintiff has brought this lawsuit against the York County sheriff and the County of York challenging his suspension and subsequent dismissal as jail administrator of the York County Jail and deputy sheriff of York County. The plaintiff claims under 42 U.S.C. § 1983 that the actions of the defendants were motivated by improper political motives, depriving him of his First Amendment rights, and that they were taken without procedural due process. The defendants have filed a Motion to Stay the action and for Summary Judgment. The court hereby issues the following Order and Recommended Decision.

MOTION TO STAY

Prior to his ultimate termination, the plaintiff previously filed an action in state court challenging his indefinite suspension. The action was couched as both a M.R. Civ.P. 80B appeal from the decision of the York County Commissioners upholding the sheriff’s actions and a 42 U.S.C. § 1983 claim. The Rule 80B appeal has been dismissed for lack of prosecution but the claim under 42 U.S.C. § 1983 remains pending. See Haskell v. Phinney, 460 A.2d 1354 (Me.1983). Upon his termination, the plaintiff filed another state court action which contained only a Rule 80B appeal. He also filed this federal action. The defendants have argued that this court should stay the federal action because of the pendency of the two state court actions.

The United States Supreme Court has recently addressed the issue of when a stay request such as this should be granted. In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 51 U.S.L.W. 4156 [460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765] (U.S. Feb. 23, 1983), the Court held that a federal court should stay its action because of parallel state court litigation only under exceptional circumstances:

the decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighed in favor of the exercise of jurisdiction.

51 U.S.L.W. at 4160 [460 U.S. at 16, 103 S.Ct. at 937]. The Court reiterated the factors mentioned in Colorado River Water Conservation District v. United States, 424 U.S. 800 [96 S.Ct. 1236, 47 L.Ed.2d 483] (1976): jurisdiction over a res; comparative convenience of the forums; avoidance of piecemeal litigation; and the sequence in which jurisdiction was obtained.

In this case, as in Cone, neither court has obtained jurisdiction over any res or property and there is no contention that the federal forum is less convenient to the parties than the state forum.

A choice between the forums does not materially affect the likelihood of piecemeal litigation: in this federal action, the section 1983 claim is presented with respect to both the suspension and the termination, but does not include the Rule 80B appeal from the plaintiff’s termination; in state court, the termination issue and the suspension issue are the subject of separate lawsuits, and no section 1983 claim is made with respect to the termination. Thus, none of the lawsuits completely resolves all matters.

Likewise, the sequence in which jurisdiction was obtained is not a material issue here. Although the state court actions were filed first, the Cone decision indicates that the true concern is “how much progress has been made in the two actions.” 51 U.S.L.W. at 4161 [460 U.S. at 21, 103 S.Ct. at 940]. Discovery is not yet complete in any of the actions. In the federal action, however, the matter is on the fall trial calendar whereas in the state court actions, final pretrial memoranda have not yet been filed and, thus, the actions are not yet on the trial calendar.

Thus, the Colorado River factors as recognized by Cone argue for denying the stay.

Cone recognized still an additional factor in favor of maintaining federal jurisdiction: “the fact that federal law provides the rule of decision on the merits.” 51 U.S.L.W. at 4162 [460 U.S. at 23, 103 S.Ct. at 941]. In Cone, where the issue was arbitration, the Court recognized that federal jurisdiction was concurrent with that of state courts, but emphasized

that our task in cases such as this is not to find some substantial reason for the exercise of federal jurisdiction by the district court; rather, the task is to ascertain whether there exist “exceptional” circumstances, the “clearest of justifications,” that can suffice under Colorado River to justify the surrender of that jurisdiction.

Id. (emphasis original). The Court concluded that the presence of federal law issues “must always be a major consideration weighing against surrender.” Id. Here, a federal claim is presented under 42 U.S.C. § 1983. Although the Maine state courts are able to apply and enforce this federal law, the Cone analysis requires that this be considered as an additional factor for denying the stay.

I conclude that this case does not present the extraordinary circumstances that Cone requires. The Motion to Stay is, therefore, DENIED.

MOTION FOR SUMMARY JUDGMENT

The Defendant Sheriffs Qualified Immunity

The defendants argue that the action against the defendant sheriff should be dismissed as a result of qualified immunity. They rely upon Harlow v. Fitzgerald, 457 U.S. 800 [102 S.Ct. 2727, 73 L.Ed.2d 396] (1982), and Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274 [97 S.Ct. 568, 50 L.Ed.2d 471] (1977).

Harlow enlarged the category of cases in which summary judgment could be granted to a defendant by holding that if an official’s conduct is objectively reasonable “as measured by reference to clearly established law,” 457 U.S. at 818 [102 S.Ct. at 2738] or, if the law was not clearly established, summary judgment should be granted for the official. The Court eliminated evidence of malicious intent as a ground for avoiding the qualified immunity defense. A plaintiff must meet the objective standard of showing that the defendant official knew or reasonably should have known that his action would violate the plaintiff’s constitutional rights. 457 U.S. at 815-18 [102 S.Ct. at 2737-38]. The elimination of the subjective test thus reduces a plaintiff’s ability to recover where the constitutional right at stake is novel even though a defendant official may have been guilty of an egregious abuse of office. Note, The Supreme Court, 1981 Term, 96 Harv.L.Rev. 62, 233-34 (1982). Here, however, counsel for the defendants agreed at oral argument that so far as Count I is concerned with respect to the plaintiff’s challenge to the basis for his suspension and dismissal, the constitutional rights raised are not novel. If the plaintiffs allegations that political considerations were at stake are proved, there is thus no debate over whether the defendant knew or reasonably should have known that his conduct would violate the plaintiffs constitutional rights. So far as Count I is concerned, then, Harlow is not material.

Mount Healthy City School District Board of Education furnishes the critical analysis on this issue. In Mount Healthy, the U.S. Supreme Court held that even though constitutionally protected conduct may have played a “substantial part” in an official decision, it would not necessarily amount to a constitutional violation. 429 U.S. at 285 [97 S.Ct. at 575]. Instead, if an employer could prove that it would have engaged in the conduct (in Mount Healthy, teacher termination) regardless of the plaintiffs constitutionally protected conduct, then its action must be upheld. 429 U.S. at 285-87 [97 S.Ct. at 575-76], The defendants here seem to argue that as a result of findings issued by the York County Commissioners in their review of the sheriffs action, they have met the Mount Healthy burden. The York County Commissioners found that the plaintiffs conduct required the sheriff to dismiss him regardless of any political motive the sheriff might also have had. The conclusions of the York County Commissioners, however, are not sufficient on this Motion for Summary Judgment to establish that the sheriff would have suspended and terminated the plaintiff regardless of political motives. The plaintiffs affidavit refers directly to statements by the sheriff which support his claim of political motivation. It directly contradicts all other allegations of misconduct on the plaintiffs part. The York County Commissioners’ findings and the plaintiff’s affidavit, therefore, can only be treated as raising a material issue of disputed fact. Under such circumstances, of course, summary judgment must be denied to the defendant.

With respect to Count II, the procedural due process challenge, the analysis is somewhat different. Although their legal memoranda do not raise the point directly, the defendants at oral argument seemed to make the point that the alleged denial of procedural due process was not clear. Thus, they argued under Harlow that the sheriff is entitled to summary judgment because it is not the case that he knew or reasonably should have known that his action would violate the plaintiff’s constitutional rights. Although the defendants may be able to make the case that there was no clear constitutional requirement of a pre-termination hearing that meets the objective standard of Harlow, the plaintiff’s claim goes beyond the issue of hearing and includes the question of notice. I am not prepared to conclude on the present record that the plaintiff was not entitled to some form of notice prior to the suspension or dismissal.

Accordingly, I recommend that the Motion for Summary Judgment with respect to the qualified immunity privilege of the sheriff be DENIED.

York County’s Defense Under Monell

The defendant York County argues that it is entitled to summary judgment under Monell v. Department of Social Services, 436 U.S. 658 [98 S.Ct. 2018, 56 L.Ed.2d 611] (1978). As the plaintiff concedes, Monell held clearly that local government liability under section 1983 may not be based solely upon respondeat superior. For purposes of this Motion for Summary Judgment, moreover, the plaintiff concedes that it was not the “official policy” of York County to termiante employees for political affiliation or activity. Plaintiff’s Memorandum in Opposition to Defendants’ Motion for Summary p. 7. The plaintiff argues, however, that section 1983 and Monell itself speak in terms broader than official policy and include “custom, or usage.” Id. at p. 8. The plaintiff also argues that the sheriff is not simply an employee but an elected public official and thereby falls into the category of one under Monell “whose edicts or acts may fairly be said to represent official policy.” 436 U.S. at 694 [98 S.Ct. at 2037], Finally, the plaintiff argues that the York County Commissioners themselves were involved in the sheriff’s decision.

Monell distinguishes between the responsibility of a governing body such as the County of York and that of its agents or officials such as the sheriff and the commissioners. The local governing body itself has liability where the action in question “implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” 436 U.S. at 690 [98 S.Ct. at 2035]. “Official policy” is the touchstone, id., and although Monell recognized that custom and usage are also material, it quoted approvingly from Justice Harlan’s opinion in Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 [90 S.Ct. 1598, 1613-14, 26 L.Ed.2d 142] (1970) that equated custom and usage with practices of state officials that were so permanent and well settled as to have the force of law. 436 U.S. at 691 [98 S.Ct. at 2036]. Monell’s reference to activity by one whose acts might be said to represent official policy appears in the following context: “it is when execution of a government’s policy or custom, whether made by its lawmakers or by those who edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” 436 U.S. at 694 [98 S.Ct. at 2037] (emphasis supplied). Thus, regardless of the sheriff’s or, indeed, the commissioners’ role, the material question remains whether the action in question amounted to governmental policy or custom. In this regard the defendants have submitted the affidavit of a York County Commissioner who has held office since January 1, 1981. According to her affidavit, at no time during that period has York County had a policy of suspending, terminating, or disciplining any county employee, including sheriff’s personnel such as the plaintiff, for political affiliation or political activity conducted off the job. Attached to her affidavit is a copy of the York County Personnel Manual, which is consistent with her affidavit in the sense that its only prohibition of political activities is with respect to such activities during working hours. Attachment to Affidavit of JoAnn O. Lancaster p. 165. Although the affidavit of the plaintiff raises many suggestions that both the sheriff and the county commissioners had political motivations in the decision to suspend and terminate the plaintiff, nothing in the affidavit carries any suggestion that they were implementing policy, custom, or usage of York County, f conclude that the defendant York County is, therefore, entitled to summary judgment under Count I.

With respect to Count II concerning procedural due process, however, the defendants’ affidavits contain no suggestion that the method of termination was other than pursuant to county policy. Thus, the defendants are not entitled to summary judgment on this ground unless the Complaint itself fails to state a claim. Although the plaintiff has not specifically pleaded “official policy,” I conclude that his allegation that the action was in accordance with the policy of the County of York, Amended Complaint 117, is sufficient to withstand dismissal under these circumstances where no issue has been raised whether county policy was followed in the procedures used.

Accordingly, I recommend that the defendant County’s Motion for Summary Judgment on the basis of Monell be GRANTED as to Count I and DENIED as to Count II.

Procedural Due Process

The defendants argue that they are entitled to summary judgment on Count II of the Complaint because the plaintiff has been accorded due process in the availability of state administrative and judicial procedures for review of his suspension and termination. Here those procedures amounted to a hearing before the York County Commissioners and the right to M.R.Civ.P. 80B review. The defendants rely upon Parratt v. Taylor, 451 U.S. 527 [101 S.Ct. 1908, 68 L.Ed.2d 420] (1981), which found that state procedures for redress available to a prisoner whose property had been taken amounted to due process for purposes of constitutional analysis. The First Circuit, however, has limited Parratt v. Taylor to circumstances involving a negligent deprivation of constitutional interests. Roy v. City of Augusta, 712 F.2d 1517, 1523-24 n. 6 (1st Cir.1983). Here, the termination of the plaintiff was not negligent but intentional. The defendants argue that although the termination was intentional, the denial of due process was not intentional. Whether or not that is correct, Roy’s limitation of Parratt to negligent deprivations focuses on the character of the deprivation of the underlying protected property or liberty interest, not on the defendants’ intent with respect to due process. I recommend that the defendants’ Motion for Summary Judgment on this ground be DENIED.

Punitive Damages

In City of Newport v. Fact Concerts, Inc., 453 U.S. 247 [101 S.Ct. 2748, 69 L.Ed.2d 616] (1981), the United States Supreme Court held that punitive damages may not be awarded against local governments in section 1983 actions. The plaintiff has shown no persuasive reason why this principle does not govern his request for punitive damages against the county. Accordingly, I recommend that the request for punitive damages be STRICKEN.

DATED at Portland, Maine, this 8th day of June, 1984.

/s/ D, Brock Hornby

D. Brock Hornby

United States Magistrate

      . Accordingly, the Court has not reviewed these actions of the Magistrate. "[A] party 'may' file objections within ten days or he may not, as he chooses, but he ‘shall’ do so if he wishes further consideration.” Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980).

      . Res judicata, of course, may enlarge the scope of a particular judgment to include issues that might have been litigated. See Isaac v. Schwartz, 706 F.2d 15 (1st Cir.1983). In this connection, the federal action seems likely to cut a wider swath than either of the two state actions.

      . Another Cone factor — the probable inadequacy of state-court proceeding to protect the rights in question — is inapplicable here. The Maine state courts are perfectly competent to protect the rights in question.


author: MERHIGE, District Judge.

text:
    W. John BURSTON, Jr., Plaintiff, v. COMMONWEALTH OF VIRGINIA, et al., Defendants.
    Civ. A. No. 83-0483-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Sept. 28, 1984.

      James K. Cluverius, Little, Parsley & Cluverius, P.C., Richmond, Va., Mary M. Levy, Elliott C. Lichtman, James C. Turner, Rauh, Silard & Lichtman, P.C., Washington, D.C., for plaintiff.
    Gerald L. Baliles, Atty. Gen., J. West-wood Smithers, Jr., Sr. Asst. Atty. Gen., Michael E. Ornoff, Elizabeth C. Gay, Asst. Attys. Gen., Richmond, Va., for defendants.
   MEMORANDUM

MERHIGE, District Judge.

The matter now before the Court deals with the fixing of attorneys’ fees. In its order of April 20, 1984, the Court held that “plaintiff is entitled ... to his costs and attorneys’ fees for this action.” Counsel for the parties have failed to agree on an appropriate award. Consequently, they have briefed and orally argued the issue, which is now ripe for disposition.

I. Background

The facts of this case are more fully set out in the Court’s Memorandum of April 20, 1984. Some of the more salient aspects are repeated here to provide an appropriate background for the disposition of this fee application.

Plaintiff, a black male, was employed by the Commonwealth of Virginia’s Department of Computer Services (the “DCS”), from 1976 to February 10, 1983. In January, 1981 he was appointed EEOC officer at his DCS location, a position he retained until his discharge. As an EEOC officer, he vigorously advocated certain complaints and views in reference to discrimination by his employer.

Between the autumn of 1980 and February 10, 1983, plaintiff, though qualified, was passed over for two promotions for which he applied; he was later demoted, and eventually was discharged on February 10, 1983. Plaintiff filed this suit, arising essentially out of this series of events, on August 8, 1983, against DCS and several of its supervisory and administrative employees. He based his suit on 42 U.S.C. §§ 2000e et seq. (“Title VII”), 42 U.S.C. §§ 1981, 1983, and several pendent state causes of action. As relief for his Title VII claim, plaintiff sought reinstatement, backpay, costs and attorneys’ fees. For his other claims, plaintiff sought — in addition to the same relief he sought under Title VII — compensatory and punitive damages.

On January 12, 1984, the Court dismissed certain of plaintiff’s claims: the Section 1981 and 1983 claims against the DCS, and against its defendant employees in their official capacity insofar as monetary relief was sought. The remaining claims went to trial, where plaintiff prevailed in his Title VII claim with respect to all of defendants’ conduct except for their ultimately discharging him, which the Court found justified. Plaintiff received $17,311 for back-pay relief, and was, of course, held entitled to attorneys’ fees; but the Court denied plaintiff’s prayer for reinstatement. The Court held that its analysis of plaintiff’s Title VII claim was equally applicable to his surviving § 1981 claims and assumed, arguendo, that his surviving § 1983 claims were similarly successful; however, the Court found that no further relief authorized under those sections — i.e., compensatory or punitive damages — would be appropriate. As for plaintiff’s pendent state claims, the Court declined to consider them.

Subsequent to the Court’s order of April 20, 1984, defendants filed a motion for the Court to reconsider its Findings of Fact and Conclusions of Law in the case, which the Court denied. Plaintiff then applied for his award of costs and attorneys’ fees. He now seeks $82,109.25 in fees and $5,347.62 in expenses and costs. Defendants do not present a specific lower dollar amount that they feel would be appropriate, but do challenge a number of items in plaintiff’s application.

II. General Principles Governing Attorneys’ Fee Awards.

The general principles governing the amount of fee awards, where a statute authorizes the district court to award fees in its discretion to the prevailing party, are well developed. District courts are obliged to set out “detailed findings of fact” concerning attorneys’ fee awards, in relation to twelve factors. Barber v. Kimbrell, 577 F.2d 216, 226, 226 n. 28 (4th Cir.), cert. denied, 439 U.S. 934, 99 S.Ct. 329, 58 L.Ed.2d 330 (1978). The basic approach is to multiply the customary hourly rate for the services rendered by the number of hours reasonably expended; the product of these two is the so-called “lodestar” figure. The lodestar is then adjusted on the basis of numerated other factors, which are the same as the last seven of the twelve factors recognized in Barber v. Kimbrell, supra, as appropriate considerations in awarding attorneys’ fees. Anderson v. Moms, 658 F.2d 246, 249 (4th Cir.1981).

The Supreme Court has recently endorsed approaches to attorneys’ fee determinations similar to the formulation articulated by the Court of Appeals for the Fourth Circuit in Anderson. See Blum v. Stenson, — U.S. -,---, 104 S.Ct. 1541, 1543-44 (1984); Hensley v. Eckerhart, 461 U.S. 424, 430-35, 103 S.Ct. 1933, 1938-40, 76 L.Ed.2d 40 (1983). In addition, the Supreme Court, in Hensley, emphasized the importance of one of the twelve factors cited in Barber, the relationship between “results obtained” and the fee award. If a plaintiff does not prevail on claims that are “unrelated” to the claims on which the plaintiff succeeded, the district court may not award fees for services rendered on the unsuccessful, unrelated claim. Hensley, supra, 461 U.S. at 435, 103 S.Ct. at 1940. Further, the Court must consider whether plaintiff’s level of success makes the hours reasonably expended a satisfactory basis for making a fee award. Id.

III. Customary Hourly Rates.

Plaintiff seeks compensation for his counsel as follows: $125 per hour for partners from his lead firm, Rauh, Silard, and Lichtman (RSL), of Washington, D.C.; $100 per hour for the partner serving as local counsel, of Richmond, Virginia; and $85 per hour for all associates, including the associate of the partner serving as local counsel. Plaintiff has submitted extensive documentation to support these rates, including several affidavits as well as court cases from both the Eastern and Western Districts of Virginia and the D.C. District.

Defendants object to the rates sought by RSL counsel. The factual basis for their contention is that RSL initially contracted with plaintiff to charge $95 per hour for partners’ time and $60 per hour for associates’ time.

The relevant rate is the customary hourly rate, or, as the Supreme Court has recently characterized it, “the prevailing market rates in the relevant community.” Blum, supra, — U.S. at-, 104 S.Ct. at 1545. The Supreme Court has further clarified that the “prevailing market rate” is the rate “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Id. — U.S. at-, n. 11, 104 S.Ct. at 1547, n. 11. The Supreme Court expressly rejected the argument that attorneys’ fees should be awarded on a cost-based standard rather than a market rate. See Id.

Plaintiff has satisfied the Court that the hourly rates of $125 for partners and $85 for associates at RSL are the appropriate rates under the standards articulated in Blum. Although plaintiff’s counsel did contract at a lower rate than what they now seek, they have suggested that one reason for the lower rate was plaintiff’s modest resources. The evidence at trial satisfies the Court of the fact of plaintiff’s modest resources. Plaintiff’s counsel also point out that plaintiff will probably not be able to pay even these lower rates in the foreseeable future. In effect, the lower rates appear to have reflected some pro bono consideration by plaintiff’s counsel. In any event, the contracted-for rates do not reflect prevailing market rates for RSL’s work in cases such as this, as evidenced in affidavits by numerous attorneys and several court cases. It is the prevailing market rate that is presumed to be reasonable, and to which plaintiff is entitied in determining court-awarded attorneys’ fees.

As discussed supra, plaintiff also seeks compensation for his local counsel at their prevailing market rates, which he asserts are $100 per hour for the partner, Mr. Cluverius, and $85 per hour for the associate, Mr. Cann. He supports these rates with several uncontradicted affidavits from other attorneys in the Richmond area.

The Court notes, however, that services rendered by local counsel are not necessarily the same as the services involved in being lead counsel in a suit such as this. Such was the situation here. Local counsel was required in this case by Local Rule 7(D), which mandates that “foreign attorneys” practice before this Court only if they are associated with local counsel who accompany them at court appearances and who sign pleadings and notices filed with the Court. Plaintiff sought an exemption from this requirement, which the Court denied. Local counsel’s work accounted for 46.28 of the 773.28 hours spent by plaintiff's counsel in this case for which plaintiff seeks an award. The description of local counsel’s work indicates that much of it involved advising on local rules, reviewing documents, or making court appearances. In light of all these circumstances, the Court finds that local counsel, though competent and diligent, should be compensated at rates somewhat less than the rates for actually conducting a case such as this. The Court finds hourly rates of $75 for the partner involved, and $45 for the associate, to be fair.

IV. Reasonable Hours.

Plaintiff seeks a fee award based on a total of 773.28 attorney-hours. This primarily represents the work of two attorneys from RSL (714.0 hours); it also includes the work of several other RSL attorneys, along with the work of the two attorneys associated with the case as local counsel. These hours were accumulated over a year’s time, from June 1, 1983, with an initial review of documents from plaintiff, to July 9, 1984, with the filing of plaintiff’s reply to defendant’s opposition to plaintiff’s application for attorneys’ fees.

A. Unsuccessful, Unrelated Claims

At the outset, the Court recognizes that a “prevailing party” cannot be compensated for hours spent on unsuccessful unrelated claims, as discussed supra. Plaintiff did fail on several of his claims, which are discussed, supra. The Court must now determine whether any of these unsuccessful claims were “unrelated” so as to preclude plaintiff’s recovery for work devoted to them.

Here the plaintiff lost the aspect of his legal claim arising out of his ultimate discharge from DCS. One form of relief he sought — his reinstatement — was therefore denied. Nevertheless, the Court finds that plaintiffs discharge was related to the successful aspects of his claims, arising out of other conduct by defendants towards plaintiff. DCS’s discharge of plaintiff was part and parcel of a series of events between plaintiff and defendants, occurring within a relatively short time span in one particular setting, relating to defendants’ race-based discrimination against plaintiff in the work place. Further, the legal bases for plaintiff’s unsuccessful complaint over his discharge were identical to the legal bases for the successful aspects of his claims. Under these circumstances, the Court sees no valid reason for finding that the unsuccessful discharge aspect of plaintiff’s claim was unrelated to the successful aspects of his claims.

Plaintiff also failed to prevail on several aspects of his claims under Section 1981 and 1983, because of immunities doctrines. But these claims arose out of the identical set of events as his successful claims. There is no reason to characterize such claims as unrelated, and defendants do not contend that they are.

Additionally, plaintiff did not prevail on his pendent state claims. Rather, the Court exercised its discretion not to rule on those claims. Defendants contend that these are unsuccessful, unrelated claims, and the total hours claimed by plaintiff’s counsel should be reduced and reflected in a substantial reduction in the Court’s award. The Court disagrees. It is true that some of the pendent state claims are based on legal theories, such as breach of contract, that are not necessarily associated with civil rights and employment discrimination. However, plaintiff was seeking exactly the same relief, against the same defendants, based on the same nucleus of facts, under these alternative state claims as were involved in his Section 1981 and 1983 claims. Under these circumstances, the Court does not find these pendent state claims to be unrelated.

B. Excessive, Redundant, Unnecessary Hours.

Defendants have marshalled a number of arguments for their contention that the hours for which plaintiff seeks to compensate his counsel are excessive. The law is clear that a fee award should not compensate work that is “excessive, redundant, or otherwise unnecessary,” see Hensley, supra, 461 U.S. at 434,103 S.Ct. at 1940.

Defendants call attention to the hours spent by plaintiff’s counsel on six specific items, including the preparation and drafting of the initial complaint, and the preparation and drafting of plaintiff’s Exhibit List and his Proposed Findings of Fact and Conclusions of Law. The Court has reviewed the explanations for these hours that plaintiff’s counsel have prof-erred in the affidavits attached to plaintiff’s reply. The Court is satisfied that the hours spent were generally reasonable, although there may have been some lapses in “billing judgment.” To the extent that there were such lapses, they are accounted for by the Court’s twenty percent reduction of hours for billing judgment, discussed infra. No additional reductions need be made with respect to these specific items.

Defendants also criticize plaintiff’s decision to obtain counsel from Washington, D.C., rather than Richmond. They seek thereby to reduce the hours submitted by plaintiff for so-called duplicative work of local counsel (presumably their appearances before the Court, and preparation for those appearances), and for hours necessitated by lead counsel’s lack of familiarity with the procedures existing in the Eastern District. But the conclusion that many attorneys in the Richmond area would be reluctant to represent plaintiff in a case of this nature is understandable, as an affidavit plaintiff has submitted supports. These cases are both time-consuming and hard fought. An element of financial risk is always present when one is dealing with a litigant of modest means — this is especially so when the adversary, as here, has the support of the state’s resources. Further, plaintiff sought and was denied an exemption from the Local Rule 7(D), which requires “foreign attorneys” to associate themselves with local counsel to appear in and sign the pleadings in any case in the District. It would be inappropriate to characterize the time so spent by local counsel as unnecessary and uncompensable. Further, the Court notes that it has already diminished the hourly rate at which local counsel should be compensated, for the reasons stated supra.

The Court notes that defendants have submitted and argued in their brief from an affidavit by a local attorney, in which he states his opinion that the hours claimed by plaintiff are unreasonably high, based on his own experience in nine cases of employment discrimination since 1983, and his view of the experience of plaintiff’s counsel and the nature of plaintiff’s claims. The Court appreciates this opinion, but prefers to rely on its own review of the fee application in this case. The Court is not unfamiliar with this case — nor is it unversed in employment discrimination cases in general.

While the Court has rejected defendants’ specific arguments about excessive or redundant hours, the Court does believe that some reduction is appropriate. The Court has reviewed the hours for which plaintiff seeks attorneys’ fees, and concludes that the total hours should be reduced across the board by 20%, to account for an apparent absence of “billing judgment.” It appears that plaintiff’s counsel have submitted hours for most, if not every, hour spent for which they may have any colorable claim for some compensation. These include, for example, hours spent traveling, and hours spent researching items that were not discussed at the initial pretrial conference.

V. Costs and Expenses

Plaintiff has submitted a list of “costs and expenses,” which total $4,911.47. Defendants criticize plaintiff’s submission of several of these items. Regrettably, the extent of the expenditures in every category submitted is totally unexplained. For example, “travel and hotel” expenses are submitted as one lump sum of $1,105. There is no information as to the precise number of trips, number of nights in a hotel, number of meals, or any other such information that would help the Court or the defendants to determine the reasonableness and/or the necessity of the amounts expended. The Court has an inadequate record before it to justify imposing upon the defendants any of the costs or expenses claimed. Plaintiff shall, however, be afforded an opportunity to file promptly an appropriate bill of costs with the Clerk of this Court. Plaintiff shall be entitled to such taxable costs as the Clerk may determine are appropriate, reserving to any of the parties the right to file objections to the Clerk’s assessment.

The Court realizes that some of the items submitted in plaintiff’s list of “costs and expenses” may not be taxable costs. To the extent that plaintiff seeks compensation for any such items as expenses that may be recovered through an award of attorneys’ fees, the Court shall deny compensation. This is, of course, due to the absence of explanations about those expenses, which the Court has noted supra.

VI. Computations.

Having made these findings, the Court is in a position to compute an attorneys’ fee award. The computations are set out on the following page,

Computation of Reasonable Attorneys’ Fees

(b) (a) (c) (d)

Counsel Reasonable Hourly Rate Hours Submitted Hours After 20% Reduction (a) X (c) Fee

RSL partners $125 376.75 301.40 37.675.00

RSL associates 85 330.25 264.20 22.457.00

Local counsel partner 75 34.03 27.22 2,041.50

Local counsel associate 45 12.25 9.80 441.00

62,614.50

Costs and expenses sought: 4,911

-expenses allowed: _0.

TOTAL FEE AWARD (not including interest): $62,614.50

In addition to the computed amount, the award should include post-judgment interest at the legal rate from the appropriate dates. See 28 U.S.C.A. § 1961(a). Interest accrues from the date of the judgment when plaintiff was held entitled to attorneys’ fees — that is, April 20,1984 — for compensable work performed up to that date. See Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542, 544-45 (5th Cir.1983) (en banc). The Court has calculated that the value of such compensable work is $48,710.70. Interest accrues from the date of filing of this memorandum and the accompanying order, with respect to compensable work performed after April 20, 1984. See id. The Court has calculated that the value of this compensable work — the remainder of the fee award — is $13,903.80.

VII. Relationship Between Fee Award and Results Obtained.

Defendants argue vigorously that a fee award of the magnitude sought by plaintiff (and presumably of the magnitude computed supra as well) is unreasonable in relation to the results obtained, and therefore must be reduced in accordance with the Supreme Court’s recent holding in Hensley, supra. They support this contention primarily with two facts.

First, they compare the relief obtained— which is, in dollar terms, $17,311 — with the fee award of several times that amount. Second, they point out that plaintiff failed to obtain three types of relief sought: reinstatement, compensatory damages, and punitive damages, succeeding only on his backpay relief.

Neither of these facts, in and of themselves, compel the conclusion that the fee award is unreasonable in relation to the results obtained. As for the disparity between the fee award and the dollar value of the relief obtained, courts since Hensley have awarded fees with similar disparities. See Jaquette v. Black Hawk County, Iowa, 710 F.2d 455 (8th Cir.1983) (fees of $22,752.24 for recovery of $1,500); Clymore v. Far-Mar-Co., Inc., 576 F.Supp. 1161 (W.D. Ms.1983) (fees of over $16,000 for recovery of $6,093.89); see also Greenhaw v. Lubbock County Beverage Association, 721 F.2d 1019 (5th Cir.1983) (fees of $246,517 upheld where actual recovery by class members totalled $17,482).

There is good reason for not limiting fee awards to the dollar amount of the recovery, especially in civil rights cases brought by single plaintiffs. In such cases the monetary relief due as a consequence of unlawful, discriminatory conduct, such as not promoting a person, may often be extremely moderate, yet the problems of prevailing — especially where the defendants, as in the instant case, assert pretextual reasons for not promoting the plaintiff— may require extensive discovery. Further, a defendant may litigate the case vigorously, as indeed should be done, further increasing the number of hours required to prosecute the case successfully. To limit plaintiffs’ attorneys’ fees to the dollar amount of the recovery would force a number of victims of discrimination to go unrepresented — and would very likely mean that their injury would linger unredressed. The Court believes that such a result would be contrary to Congress’s purpose in authorizing attorneys’ fee awards in such cases.

Defendants do not appear to contend that plaintiff’s fee recovery is limited to the dollar value of his relief. They do argue that the disparity between relief obtained and fees sought warrants a downward adjustment. The Court disagrees, however, for the reasons stated infra.

As for the fact that plaintiff failed to obtain the compensatory and punitive damages sought, this too does not compel a downward adjustment. As the Supreme Court stated in Hensley,

Nor is it necessarily significant that a prevailing plaintiff did not receive all the relief requested. For example, a plaintiff who failed to recover damages but obtained injunctive relief, or vice versa, may recover a fee award based on all hours reasonably expended if the relief obtained justified that expenditure of attorney time.

Hensley, supra, 461 U.S. at 435, n. 11, 103 S.Ct. at 1941, n. 11.

The Court finds that the relief obtained justifies the expenditure of attorney time involved here. Plaintiff prevailed against defendants with respect to nearly all of defendants’ conduct towards him about which he complains in this action. This conduct persisted for a period of over two years. It involved repeated denials of promotion, abolition of plaintiff’s supervisory position, denial of placement in a better available position, demotion to a position of manual labor in a stockroom, and surveillance of a kind to which no other employee was subjected. Insofar as these events affected plaintiff’s salary during this entire period, plaintiff was made whole through this lawsuit. The fact that plaintiff did not obtain the remainder of the relief sought does not diminish the significance of this overall relief, which in itself justifies the hours reasonably expended in this lawsuit.

VIII. Conclusion

For the reasons stated herein, the Court finds that plaintiff is entitled to an award of $62,614.50 as reasonable attorneys’ fees, plus interest.

An appropriate order will issue.

      . The Court has discretion to award attorneys' fees to plaintiff, who is the prevailing party here, under both 42 U.S.C. § 1988 (for prevailing on certain of his claims brought under 42 U.S.C. § 1981) and 42 U.S.C. § 2000e-5(k) (for prevailing on certain of his Title VII claims).

      . These state causes of action were: breach of contract, a common law claim of tortious interference with employment, and a statutory claim of unlawful combination to injure others in their trade, business, etc.

      . After an auto accident on January 9, 1983, plaintiff did not report to work at DCS from January 12, 1983 until he was discharged. He produced two medical reports stating that he was "totally incapacitated,” and collected sick leave pay from the Commonwealth during this time. But he also worked throughout this period for Burlington-Northern Air Freight Company, where he performed duties similar to his duties at DCS. The Court found that such conduct by plaintiff was DCS’s legitimate and nondiscriminatory reason for discharging plaintiff.

      . Plaintiff, in his original application for costs and attorneys’ fees, sought somewhat less than he now seeks in attorneys’ fees: $78,050.50, instead of $82,109.25. The higher amount now sought reflects an increase in hours by attorneys Lichtman (17 more hours) and Levy (22.75 more hours) from the time the original application was filed. This increase in hours apparently reflects the additional work related to (i) preparing and drafting plaintiffs reply to defendant’s brief in opposition to plaintiffs fee application; (ii) preparing for the hearing on the application; and (iii) settlement discussions on the proper amount of a backpay award.
      Plaintiff continues to seek $5,347.62 in costs and expenses.

      . Those twelve often-recited factors are:
      (I) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (II) the nature and length of the professional relationship between attorney and client; and (12) attorneys’ fees awards in similar cases. 577 F.2d at 226 n. 28.

      . Defendants cite several cases for their contention that plaintiff cannot be awarded more than his contract rate for attorneys’ fees. See Johnson v. Georgia Highway Express, 488 F.2d 714, 718 (5th Cir.1974); Exhibitors’ Service, Inc. v. American Multi-Cinema, Inc., 583 F.Supp. 1186, 1189-92 (C.D.Cal.1984); Sisco v. J.S. Alberici Construction Co., Inc., 564 F.Supp. 765, 767-68 (E.D.Ms.1983); Computer Statistics, Inc. v. Blair, 418 F.Supp. 1339, 1351 (S.D.Tex.1976). None of these cases, however, had the benefit of the Supreme Court’s ruling in Blum, which requires counsel's lodestar amount to be calculated using prevailing market rates. A contract rate does not always reflect the customary market rate for similar services. Where the contract rate is lower than the market rate, and where that lower contract rate appears to reflect special billing considerations, there is no reason to hold plaintiff to the lower-contract rate in computing the lodestar amount.
      Defendants also attempt to support their position with the Supreme Court's statement in Hensley that ’’hours ... not properly billed to one’s client also are not properly billed to one’s adversary.” Hensley, supra, 461 U.S. at 434, 103 S.Ct. at 1940. As defendants themselves recognize, however, this refers to the proper practice in computing hours, not hourly rates. If taken to refer to hourly rates, as defendants would read it, the statement would undermine the Supreme Court’s subsequent statement in Blum that the prevailing market rate, not a cost-based rate, is the appropriate standard.

      . As the Supreme Court has recognized, "there is no certain method of determining when claims are ‘related’ or ‘unrelated.’” Hensley, supra, 461 U.S. at 437 n. 12, 103 S.Ct. at 1941 n. 12.

      . For example, plaintiffs attorneys have submitted 5.5 hours in connection with the initial pretrial conference, which was a very brief, routine affair. The time included several hours “in transit, waiting and attendance” by Mr. Lichtman and local counsel, and several hours of research time in anticipation of possible oral argument over defendants’ motion to dismiss.
      While this reflects careful preparation, which is admirable, the Court believes that it would not reflect billing judgment to charge a client (or an adversary who is liable for fees) for all the time involved.

      . Defendants have submitted a Richmond attorney's affidavit, which states that there exist Richmond counsel who are competent to handle a case such as plaintiffs’ and that he himself would have handled such a case. But this does not establish — or purport to establish — that there are in fact many attorneys in the Richmond area who would handle a case of this nature.

      . The records show that compensation is sought for hours spent on at least seven trips between Washington and Richmond, although it is sometimes unclear whether the hours include one-way or round-trip travel, or whether only partial travel time is sought.

      . See supra, note 8.

      . This amount is derived by subtracting the amount computed in footnote 13, infra, from the total fee award.

      . ' This amount is derived in the following manner. First, the hours accrued after April 20, 1984 for any attorney^ submitting hours after that date were totalled. For Mr. Lichtman, the total is 77.25 hours (60.25 hours in the first Lichtman/Levy affidavit, and 17 additional hours in the second Lichtman/Levy affidavit). For Ms. Levy, the total is 80.25 hours (57.5 hours in the first Lichtman/Levy affidavit, and 22.75 hours in the second Lichtman/Levy affidavit). For Mr. Cluverius, the total is 12 hours 2 minutes (12.03 hours) (all in the Cluverius/Cann affidavit). These were the only three attorneys for whom the records show hours accruing after April 20, 1984. Second, the Court reduced the number of hours by 20%, to incorporate its 20% reduction for lack of billing adjustment. Finally, the reduced hours were multiplied by the appropriate hourly rates for each attorney, and the results were totaled.

      . Defendants argue that one remark of the Supreme Court in a footnote in Hensley compels a downward adjustment here. 461 U.S. at 1438, n. 14, 103 S.Ct. at 1942, n. 14. The remark concerns an employment discrimination case, Brown v. Bathke, 588 F.2d 634 (8th Cir.1978), in which a plaintiff had failed to obtain reinstatement, compensatory damages, and punitive damages, although she did win backpay and expungement of her employment record. This pattern of relief sought and obtained is similar to the pattern of relief sought and obtained here. The Supreme Court noted that the plaintiff in Brown "had lost on the major issue of reinstatement,” and suggested that the district court had correctly limited the fee award because of the scanty results obtained.
      Defendants here fail to note, however, that the district court in Brown expressly found that the plaintiff “obtained only a minor part of the relief she sought.” This appears to have been the basis of the Supreme Court’s characterization of reinstatement as “the major issue” in Brown. The Court here, however, has found that the backpay award redressed the bulk of defendants’ unlawful conduct over a two year period about which plaintiff complains, and that the time spent by plaintiffs counsel is justified by this award.
      The Court reminds defendants that plaintiffs in two cases may seek in their complaints identical forms of relief, including backpay, among other things — but for one plaintiff, backpay may be a major part of the relief sought, in that it redresses a long sequence of unlawful behavior; for another, backpay may represent little.