author: BENJAMIN F. GIBSON, District Judge.

text:
    Barbara Ann BENNETT, et al., Plaintiffs, v. J.C. PENNEY, et al., Defendants.
    No. K83-388 CA.
    United States District Court, W.D. Michigan, S.D.
    March 6, 1985.
    Ronald R. Gilbert, Detroit, Mich., for plaintiffs.
    Anthony A. Derezinski, Cholette, Perkins & Buchanan, Grand Rapids, Mich., for National Spa & Pool Institute.
    George W. Steel, Harvey, Kruse, Western & Milan, Detroit, Mich., for J.C. Penney & Coleco.
   OPINION

BENJAMIN F. GIBSON, District Judge.

Plaintiffs in this suit seek to recover for deaths and injuries which occurred in outdoor, above-ground swimming pools. Plaintiffs have advanced claims under state tort law and under the federal Consumer Products Safety Act, 15 U.S.C. § 2051 et seq.

The National Spa and Pool Institute (NSPI) has filed a motion to quash service of process and to dismiss, alleging a lack of personal jurisdiction. Having considered the arguments of the parties and the pleadings and affidavits that have been filed, the Court denies NSPI’s motion.

As this Court has previously noted,
The burden of proving jurisdiction is on the plaintiff. When the issue is to be determined solely on the basis of written materials, the plaintiff need only present a prima facie ease. In addition, the pleadings, affidavits, and depositions are to be considered in the light most favorable to the plaintiff. Welsh v. Gibbs, 631 F.2d 436 (6th Cir.1980), cert, denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981); Doebler v. Stadium Prod., Ltd., 91 F.R.D. 211 (1981).

Herman Miller, Inc. v. Mr. Rents, Inc., 545 F.Supp. 1241, 1243 (W.D.Mich.1982).

Under Federal Rule of Civil Procedure 4(e), the Court must initially look to state law to determine whether the defendant was properly served. Michigan’s long-arm statute provides, in part, that

[t]he existence of any of the following relationships between a corporation or its agent and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise limited personal jurisdiction over such corporation ... arising out of the act or acts which create any of the following relationships:
(1) the transaction of any business within the state.

Mich.Comp.Laws Ann. § 600.715. Section one of the Michigan long-arm statute has been construed by the Michigan courts as bestowing the broadest grant of personal jurisdiction consistent with the due process clause of the United States Constitution. See Herman Miller, Inc., supra, at 1244. Thus, the relevant inquiry in this case is whether exercise of jurisdiction over NSPI would violate the due process clause.

The Supreme Court has held that the due process clause is not offended when the contacts between the defendant and the forum are such that “traditional notions of fair play and substantial justice” are not offended by requiring the defendant to defend in the forum selected by plaintiff. World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286,100 S.Ct. 559, 62 L.Ed.2d 490 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In determining whether personal jurisdiction is properly asserted, the courts are directed to focus their attention on the relationship between the defendant, the forum, and the litigation. Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977); see also Keeton v. Hustler Magazine, — U.S. —, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984).

In Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 381 (6th Cir.1968), the Sixth Circuit held that each of the following three criteria must be established in order to find personal jurisdiction:

First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of personal jurisdiction over the defendant reasonable.

As discussed below, the Court finds that each of these criteria are met in this case.

Defendant NSPI argues that it cannot be said to have purposefully availed itself of the privilege of acting within Michigan. By affidavit, NSPI’s Vice-President of Administration informs the Court that NSPI is incorporated in Illinois, has a principal office in Alexandria, Virginia, and a subsidiary office in Orange, California. It has no office or mailing address in Michigan; nor is it licensed or authorized to do business within the state. It has no employees, bank accounts, or personal or real property within the state.

The Court notes that NSPI is organized as a nonprofit business league as described under Internal Revenue Code Section 501(c)(6). By the terms of the Code, NSPI is prohibited from deriving any economic benefit from placing products in the stream of commerce and is required to expend all of its resources to the benefit of the spa and pool industry.

Because NSPI is not organized for profit, the Court cannot determine whether NSPI “purposefully availed” itself of the privilege of acting within Michigan by looking at factors upon which courts have typically relied, such as percentage of total profits coming out of the forum state or number of employees within the state. Instead, the Court must consider the service that NSPI attempted to provide nationwide and determine the extent to which its actions created a presence in Michigan. Speckine v. Stanwick International, Inc., 503 F.Supp. 1055, 1058 (W.D.Mich.1980) (if actions within state are not income generating, courts should look for involvement with forum state through actions freely and intentionally done by defendant); see Mad Hatter, Inc. v. Mad Hatters Night Club Co., 399 F.Supp. 889, 891 (E.D.Mich.1975) (defendant’s “purposeful” action need not be an income generating one).

In several of its brochures, NSPI describes itself as “a national trade association dedicated to high standards and a strict code of ethics” and advises consumers that “purchasing from an NSPI member provides you with access to consumer satisfaction procedures sponsored by the industry for the benefit of our customers." NSPI, Pool Maintenance (February 1984); NSPI, Pool Days (Oct. 1983). Plaintiff alleges that NSPI distributes literature and various brochures throughout the State of Michigan and requires that pools built, retailed and sold by NSPI members meet certain safety standards.

NSPI has over fifty members in the State of Michigan and collects dues from those members. Members are primarily distributors of swimming pools, hot tubs, saunas and other related equipment. An undated membership application submitted by plaintiffs indicates that the dues are assessed on the basis of income of the member, starting at a minimum assessment of approximately $800. Thus, the Court can surmise that NSPI annually receives in excess of $40,000 from its fifty some Michigan members. A member is entitled to display the NSPI logo and presumedly benefits from the NSPI brochures which encourage consumers to purchase from NSPI members.

Plaintiffs allege that NSPI holds meetings and conducts business on a regular basis in the State of Michigan. By affidavit, NSPI explains that the meetings described in the complaint are actually held by the Michigan Swimming Pool Corporation (MSPC), a local chapter of NSPI which is incorporated separately from its parent organization. MSPC is a nonprofit organization and has no paid employees. Because MSPC is separately incorporated, NSPI argues that the Court should not consider MSPC’s contacts with the state in determining whether the Court has jurisdiction over NSPI itself.

The Court is not convinced by NSPI’s argument. From affidavits submitted by plaintiffs counsel, it appears that MSPC refers to itself as the local chapter of NSPI in its news releases. Further, the Court notes that a swimming pool distributor who joins MSPC simultaneously joins NSPI. In fact, the application directs the applicant to send both the application and the check covering dues to NSPI. NSPI then forwards the application to MSPC for acceptance or rejection. Based on this close relationship, the Court concludes that the contacts of MSPC are properly considered in determining whether the “minimum contacts” necessary for personal jurisdiction over NSPI exist. Cf. Wright & Miller, Federal Practice and Procedure § 1069, at 256 (1969) (if a subsidiary is merely an agent through which the parent conducts business in the jurisdiction then the subsidiary’s business will be viewed as that of the parent).

Based on these contacts, the Court concludes that NSPI has purposefully availed itself of the privilege of acting within the state. NSPI serves as a trade association representing the swimming pool industry. In that capacity, it solicits members, advertises and lobbies on their behalf, and publishes numerous brochures advising consumers, among other things, to buy only from NSPI members. It has performed these activities in Michigan. Thus, in light of the business purposes- of NSPI, the Court concludes that NSPI has purposefully availed itself of business opportunities within Michigan.

Under the second prong of the Southern Machine Co. test, the Court is required to consider whether the cause of action asserted arises from the kind of activity identified under the first prong. The Court concludes that it does. Without reaching any opinion at this point on the viability of the causes of action asserted by plaintiffs, the Court notes that several theories have been advanced in plaintiffs’ amended complaint. Among the tort claims advanced are negligent misrepresentation, fraud and deceit, negligent failure to warn, and violation of a duty undertaken on behalf of a third party (Restatement of Torts 2d § 324A). Plaintiffs also allege that defendant NSPI had a duty under the federal Consumer Products Safety Act to report potential defects of swimming pools marketed by its members. Each of these theories is related to NSPI’s activities in Michigan as an association dedicated to promoting the products of its members. Thus, the second prong is satisfied.

Finally, Southern Machine Co. held that the acts of defendant must have a substantial enough connection with the forum state to make the exercise of personal jurisdiction over the defendant reasonable. One factor to consider in this regard is whether the State of Michigan has an interest in resolving the conflict at issue. In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 232 (6th Cir.1972); Southern Machine Co., supra, at 384; see also Keeton v. Hustler Magazine, Inc., — U.S. —, 104 S.Ct. 1473, 1479-81, 79 L.Ed.2d 790 (1984). The Court concludes that the State of Michigan at least has an interest in ensuring that information upon which its consumers rely is accurate and not deceptive. Another factor to consider is whether defendants could forsee that, based on their activity within the state, they would be haled into Court. World-Wide Volkswagon Corp., supra, 444 U.S. at 297, 100 S.Ct. at 567. The Court finds that the facts of this case are such that defendant NSPI could have reasonably anticipated such a suit. In particular, the Court notes that NSPI, in its 1984 brochures, urges Michigan consumers to purchase only from NSPI distributors. It advises consumers that, when they purchase from an NSPI member, they can expect superior product quality and service integrity and that NSPI members have agreed to abide by a strict ethics code governing business, construction and advertising practices. NSPI, We Meet Your High Standards, (March 1984). Plaintiffs allege that similar brochures were being distributed in Michigan at the time the injuries subject to this lawsuit occurred. The Court concludes from these representations of NSPI that NSPI asks consumers to rely upon its advice. NSPI cannot be surprised when a disappointed consumer brings suit when that consumer believes NSPI failed to live up to its representations. See In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 233-34 (6th Cir.1972); accord Arnstein v. Manufacturing Chemists Association, Inc., 414 F.Supp. 12 (E.D.Pa.1976) (finding personal jurisdiction over non-resident chemical industry trade association that had some members in the state, collected dues, distributed various educational publications, and recommended safety standards for the chemical industry).

Accordingly, NSPI’s motion to dismiss is denied.

      . Plaintiff also alleges that jurisdiction is proper under section two of the Michigan long-arm statute which provides for jurisdiction based on “[t]he doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.” Because section one is a sufficient basis for jurisdiction, the Court need not determine whether any of the plaintiffs’ claims fall under section two as well.


source: Caselaw Access Project

author: VERON, District Judge.

license: Public Domain

text:
    Ronald Lee WOOSLEY, Vickie Lynn Woosley v. MIKE HOOKS, INC., et al. Francis Nolan BERNARD and Janet Marie Ladnier Bernard v. MIKE HOOKS, INC., et al.
    Civ. A. Nos. 83-2981, 83-2982.
    United States District Court, W.D. Louisiana, Lake Charles Division.
    March 6, 1985.
    James Parkerson Roy, Domengeaux & Wright, Lafayette, La., for plaintiffs.
    Nicholas Gachassin, Jr., Gachassin ■& Hunter, Lafayette, La., for Mike Hooks, Inc. and USF & G.
    Ronald A. Johnson and Edward Blanchard, New Orleans, La., for Crewboats, Inc. and Lloyds of London.
    William E. Wright, Terriberry, Carroll & Yancy, New Orleans, La., for Lykes Bros. S.S. Co., Inc.
    David R. Frohn, Camp, Carmouche, Barsh, Hunter, Hoffman & Gill, Lake Charles, La., for Mission Ins. Co.
    Hal J. Broussard, Broussard & David, Lafayette, La., for Atlas Assur. Co.
   RULING

VERON, District Judge.

These consolidated actions come before the Court on the motions of defendants Crewboats, Inc. (“Crewboats”) and Lykes Brothers Steamship Company, Inc. (“Lykes”) to dismiss the demands of the plaintiffs for a jury in the trial against these defendants. The parallel complaints respectively allege that plaintiffs Ronald Lee Woosley and Francis Nolan Bernard were employed by another defendant, Mike Hooks, Inc., (“Hooks”) as members of the crew of the dredge “Louisiana.” Allegedly, these plaintiffs were injured while being transported as passengers aboard a crew-boat, the “Surf Runner,” that was owned and operated by defendant Crewboats, a Louisiana corporation. The “Surf Runner” allegedly collided with another vessel, the “Louise Lykes,” which was allegedly owned and operated by defendant Lykes, a foreign corporation. Woosley and Bernard seek recovery from Hooks under the Jones Act on the ground that a Crewboats-Hooks charter placed the “Surf Runner” and her captain under the direction and control of the “Louisiana” captain and that Hooks is therefore responsible for any unseaworthiness of the “Surf Runner” and for any negligence of her crew. They seek recovery from Crewboats and Lykes for negligence and unseaworthiness under the general maritime law. In addition, Woosley and Bernard seek maintenance and cure from Hooks and their wives seek to recover for loss of society from Crewboats and Lykes.

It is well established that, absent diversity of citizenship, no right to trial by jury exists with respect to a purely maritime claim standing alone. E.g., Russell v. Atlantic & Gulf Stevedores, 625 F.2d 71 (5th Cir.1980) (no right to trial by jury in the general maritime negligence action preserved under 33 U.S.C. § 905(b)). Crew-boats and Lykes urge that, under this principle, the demand for a jury trial against them should be stricken because, in the absence of an assertion of a Jones Act claim against these particular defendants or of complete diversity of citizenship between these defendants and the plaintiffs, no independent alternative basis for a jury trial exists in this case. The defendants rely on several Fifth Circuit decisions in support of this proposition. Yet, as will be seen from the discussion below, these decisions are distinguishable from the instant case in a quite fundamental respect. The Fifth Circuit authorities relied upon do not address a situation, such as the one presented here, where (1) plaintiffs assert purely maritime claims against certain defendants in a suit in which some of the plaintiffs have a statutory right to a jury trial against another defendant, and (2), the claims all arise out of the same transaction or occurrence. The issue of whether the purely maritime defendants have a right to a nonjury trial in this situation has not yet been addressed by the Fifth Circuit.

The defendants rely in part on T.N.T. Marine Service v. Weaver Shipyards, 702 F.2d 585 (5th Cir.1983), and Romero v. Bethlehem Steel Corporation, 515 F.2d 1249 (5th Cir.1975). In T.N.T. Marine Service, the court concluded that the trial court properly denied the sole plaintiffs request for a jury trial against the sole in personam defendant even though diversity of citizenship existed between the parties. The court held that the plaintiff elected to proceed in admiralty under Federal Rule of Civil Procedure 9(h), and thereby gave up its right to a jury, when it alleged in addition to diversity that “[t]his is also a suit for breach of a maritime contract and for maritime tort.” 702 F.2d at 587. Similarly, in Romero, the court again held that the district court properly denied a sole plaintiffs request for a jury trial against a sole maritime-but-diverse defendant, as the plaintiff had persistently designated his negligence and unseaworthiness action as one “in accord with Rule 9(h) of the Federal Rules of Civil Procedure.” 515 F.2d at 1251. Here, on the other hand, the plaintiffs have not designated their multiple claims in a fashion that would prevent the Court from submitting the entire case to the jury. Each complaint states that “[t]his action arises under the General Maritime Laws of the United States and the Jones Act.” Quite properly, the defendants do not contend that this statement deprives Woosley and Bernard of their right to a jury trial under the Jones Act. And, if this particular language, pursuant to Rule 9(h), operates to forfeit an otherwise existing right to a jury trial on a purely maritime claim, such as maintenance and cure or unseaworthiness, then the expectations of countless plaintiffs to a jury trial under Fitzgerald v. United States Lines Co., 374 U.S. 16, 83 S.Ct. 1646,10 L.Ed.2d 720 (1963), would be frustrated on an unforeseen pleading technicality. The quoted language does not differ in substance from that found in most joint Jones Act/unseaworthiness suits, and the Court therefore cannot conclude that parties intend by its use to elect to proceed without a jury on maritime claims that arise out of the same transaction or occurrence that forms the basis of a companion Jones Act claim. Even if the Court were to reach such a conclusion, it would nonetheless freely allow amendment of the complaints in a situation such as this in order to bring all of the claims arising out of the single occurrence before a single trier of fact. Thus, the decisions in T.N.T. Marine Service and Romero do not require that the maritime claims against Crewboats and Lykes be tried to the bench separately from the jury-tried Jones Act claims.

The defendants also rely upon the decision in Powell v. Offshore Navigation, Inc., 644 F.2d 1063 (5th Cir.), cert. denied, 454 U.S. 972, 102 S.Ct. 521, 70 L.Ed.2d 391 (1981). In Powell, the sole personal injury plaintiff brought general maritime tort claims against several defendants, some of whom were diverse in citizenship from the plaintiff and some who were not. The plaintiff requested a jury trial as to the diverse defendants on the basis of diversity jurisdiction, contending that the presence of the non-diverse defendants did not destroy diversity as to the diverse defendants because the common law maritime claims provided an independent basis of federal jurisdiction over the non-diverse defendants under Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). The Powell court observed that the acceptance of this argument would leave a trial court with two choices on a plaintiffs demand for a jury in a maritime minimal diversity case — it could either divide the case between the two fact-finders, with the diverse claims going to the jury and the nondiverse claims being tried to the bench, or grant a jury trial with respect to all defendants, both diverse and non-diverse. The Fifth Circuit rejected both of these choices — the first being inconsistent with the concern for judicial economy enunciated in Fitzgerald and the second being contrary to fundamental concepts of federal jurisdiction — and instead adopted a third alternative — a bench trial as to all defendants.

Significantly, the course charted in Powell cannot be navigated here. That is, the Court cannot try the entire case as a bench trial because it has absolutely no power to deprive Woosley and Bernard of the right expressly granted to them by Congress to try their Jones Act claims to a jury on the law side. And, even more significantly, the Powell court rejected the first remaining alternative, trial to two fact-finders, for reasons that are applicable with even greater force here. Splitting up a lawsuit such as this one for trial to two fact-finders “ ‘unduly complicates and confuses a trial, creates difficulties in applying doctrines of res judicata and collateral estoppel, and can easily result in too much or too little recovery.’ ” Fitzgerald, 374 U.S. at 18-19, 83 S.Ct. at 1649, quoted in Powell, 644 F.2d at 1069. It is true that in this case, as in Powell, the claims against each defendant would be decided by a single fact-finder, either judge or jury. Yet here, as in Powell, the interests of judicial economy and fairness at stake in Fitzgerald nonetheless remain pertinent because all of the claims against all of the defendants arise out of the same maritime occurrence. See 644 F.2d at 1069. These concerns are all the more relevant here where multiple plaintiffs, as well as multiple defendants, are involved.

The last remaining alternative, trial by jury on all claims and as to all defendants, is not similarly foreclosed by either Congress or the Powell decision. The Powell court did express a concern that undue expansion of the use of juries in federal admiralty cases could disrupt the statutory scheme of federal jurisdiction. See 644 F.2d at 1070-71. Yet trying cases such as this one to a jury would not produce the “revolutionary procedural change” that would have resulted had the Romero court held that maritime claims could be tried on the law side under the general federal question jurisdiction statute. See Romero, 358 U.S. at 354, 79 S.Ct. at 468. Nor would allowance of a jury trial in this situation expand the use of jury trials in admiralty to the enormous extent that would have followed had the Powell court held that only minimal diversity was required for a jury trial in maritime cases. Trial by jury on all issues in this case no more implicates the jurisdictional concerns canvassed in Romero and Powell than does the holding in Fitzgerald that an undisputably maritime cause of action such as maintenance and cure must be tried to the jury along with the Jones Act claim when both arise from the same set of facts. For there, as here, any other method of trial would be “so cumbersome, confusing, and time consuming that it [would place] completely unnecessary obstacles in the paths of litigants seeking justice in our courts....” Fitzgerald, 374 U.S. at 21, 83 S.Ct. at 1650.

Thus, far from supporting the defendants’ arguments in this ease, analysis of the Powell decision supplies the most compelling reasons for trying the entire case to the jury. Moreover, these defendants surely have no right to a non jury trial under either the Constitution or a federal statute. Fitzgerald, 374 U.S. at 20, 79 S.Ct. at 1650; Blake v. Farrell Lines, Inc., 417 F.2d 264, 265 (3d Cir.1969); Red Star Towing & Transport Co. v. “Ming Giant,552 F.Supp. 367, 371 (S.D.N.Y.1982). And, finally, well-reasoned authority supports the use of a jury on all issues in a case such as this one. See Blake, 417 F.2d at 266-67 (the court discusses the procedure under the relevant federal rules), cited with apparent approval in, In re Dearborn Marine Service, Inc., 499 F.2d 263, 271 n. 14 (5th Cir.1974); Complaint of Berkley Curtis Bay Co., 569 F.Supp. 1491, 1493-95 (S.D.N.Y.), affd without published opinion, 742 F.2d 1431 (2d Cir.1983) (the district court noted, inter alia, that trial to a single fact finder was especially appropriate where liability was to be apportioned among several defendants); Red Star Towing & Transport Co., 552 F.Supp. at 371-75 (facts similar to those in the instant case). The Court therefore holds that purely maritime claims against non-employer defendants can and should be tried to the jury when the claims are asserted in a suit in which some or all of the plaintiffs have invoked a statutory right to a jury trial under the Jones Act and the maritime and Jones Act claims all arise out of the same transaction or occurrence.

Accordingly, the motions of Crewboats, Inc. and Lykes Brothers Steamship Company, Inc. to dismiss the demands for a jury trial against them in these consolidated actions are DENIED.

      . Fitzgerald held that a seaman has a right to a jury trial on his maintenance and cure claim against a shipowner-employer when the maintenance and cure claim is joined for trial with a Jones Act claim brought on the law side.

      . The T.N.T. Marine Service decision also rests on the fact that the action had been brought in rem against a vessel, in addition to in personam against the corporate defendant. As the in rem action necessarily falls within exclusive admiralty jurisdiction, the court held that there would be no jury trial in regard to the action against the vessel. The plaintiffs have not proceeded in rem against a vessel here.


author: BUA, District Judge.

text:
    Percy NUNN, Jr., Plaintiff, v. CITY OF CHICAGO, a Municipal Corporation, and Police Officer Labant, Star No. 13466, Police Officer Natis, Star No. 8013, and Other Unknown Police Officers, Defendants.
    No. 84 C 9259.
    United States District Court, N.D. Illinois E.D.
    March 6, 1985.

      Robert A. Lagendorf, Chicago, 111., for plaintiff.
    James D. Montgomery, Corp. Counsel by Bruce B. Marr, Asst. Corp. Counsel, Chicago, 111., for defendants.
   ORDER

BUA, District Judge.

Before the Court is defendants’ motion to dismiss plaintiff’s complaint in a civil rights case. For the reasons stated herein, the defendants’ motion is granted in part and denied in part.

I. FACTS

Plaintiff Percy Nunn filed this civil rights action alleging his wrongful arrest, beating, and criminal prosecution through the acts of Officers Labant, Natis, other unknown officers, and the City of Chicago. Against defendant City of Chicago, the plaintiff alleges a policy of charging those persons on whom officers used excessive force with disorderly conduct in order to justify the use of force. In addition, the City is charged with failure to discipline officers allegedly previously guilty of such unwarranted arrests and violence by removing them from contact with the public or otherwise correcting their behavior. Finally, in Count II, the City is charged with conspiring with the named officers to falsely accuse, incarcerate, and prosecute the plaintiff. Against the named officers, plaintiff alleges that on February 14, 1983, near 4848 West Winthrop, Chicago, Illinois, Officers Labant and Natis beat, bruised, kicked, wounded, and ill-treated plaintiff without cause or provocation. Plaintiff seeks compensatory and punitive damages.

II. DISCUSSION

Defendants set forth five grounds on which to dismiss plaintiff’s complaint in whole or in part: (1) plaintiff’s complaint sets forth a “laundry list” of claims under 42 U.S.C. § 1983, at least some of which are patently frivolous; (2) plaintiff fails to state a § 1983 claim against the individual police officers; (3) plaintiff fails to state a claim for malicious prosecution; (4) plaintiff fails to state a claim for conspiracy; and (5) plaintiff fails to sufficiently allege a policy claim against the City of Chicago.

1. “Laundry List” of § 1983 Claims

Defendant identifies five allegedly frivolous aspects to plaintiff's complaint. A brief discussion of these five aspects will help to narrow the issues for defendants’ motion to dismiss.

First, in paragraph 6(a) of Count I, plaintiff alleges defendants’ refusal to arrest or report the named police officers for beating, falsely arresting, and maliciously prosecuting him. Since a plaintiff in a § 1983 suit must allege a deprivation of his constitutional rights, Crowder v. Lash, 687 F.2d 996, 1002 (7th Cir.1982), defendants conclude that the failure to arrest or report the police officers does not constitute a deprivation of plaintiff’s constitutional rights. While this argument has some appeal, the Court believes that it falls more appropriately within the issue of the alleged City policy of failure to discipline the police officers, which will be discussed in section 5.

Second, the Court grants defendants’ motion to dismiss the punitive damage claims against the City. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) makes it clear that a municipality is immune from punitive damages under 42 U.S.C. § 1983. Id. at 271, 101 S.Ct. at 2762. However, the Court denies defendants’ motion to dismiss insofar as it may seek to eliminate all punitive damages, i.e., against the named officers. The Supreme Court has held that punitive damages may be awarded under § 1983 “when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 .U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983); see also Bell v. City of Milwaukee, 746 F.2d 1205, 1266 (7th Cir.1984).

Third, the Court denies defendants’ motion to dismiss plaintiff’s complaint on the basis that it asserts a cause of action directly under the Constitution. In support of this argument, defendants cite Turpin v. Mailet, 591 F.2d 426 (2d Cir.1979). Turpin held that there is no cause of action against a municipality directly under the Fourteenth Amendment, because the plaintiff may proceed against the municipality under § 1983. Id. at 427. In the present case, plaintiff sues for constitutional violations and seeks damages under § 1983. Therefore, even under Turpin, this cause of action against the municipality is not prohibited.

Fourth, defendants argue that paragraph 9(b) of Count I fails to allege a violation of the Equal Protection Clause of the Fourteenth Amendment. A person bringing an action under the Equal Protection Clause must show intentional discrimination against him because of his membership in a particular class, not merely that he was treated unfairly as an individual. Huebschen v. Dept. of Health and Social Services, 716 F.2d 1167, 1171 (7th Cir.1983). In the present case, the Court finds that plaintiff has alleged no “particular class” other than himself and others who have been treated unfairly. The “particular class” requirement must be met by a group identified apart from the alleged unfair treatment. Therefore, paragraph 9(b) is dismissed only insofar as it rests on the Equal Protection Clause of the Fourteenth Amendment.

Fifth, defendant argues that paragraph 1 of Count I fails to allege a Sixth Amendment claim. Nowhere else does the plaintiff refer to the deprivation of his right to counsel or any facts pertaining thereto. It is well established that the initiation of adversary judicial criminal proceedings — by way of formal charge, preliminary hearing, indictments, information or arraignment — is the point at which the Sixth Amendment right to counsel attaches. State Bank of St. Charles v. Camic, 712 F.2d 1140, 1144 (7th Cir.1983). In the present case, the plaintiff alleges no facts regarding any questioning by police at any time and therefore it is impossible to determine whether plaintiff has sufficiently alleged the elements of a Sixth Amendment claim. Since it is bound to consider only well-pleaded facts in plaintiffs complaint as true, the Court grants defendants’ motion to dismiss paragraph 1 of Count I as to the Sixth Amendment claim.

2. § 1983 Claim Against Police Officers

Defendants argue that plaintiff has improperly alleged a cause of action against defendant police officers. Plaintiff alleges that “all of the acts alleged herein were done by the defendants not as individuals, but under the color” of state law. Paragraph 2 of Count I. Defendants contend that these allegations clearly show that defendants are being sued not as individuals but in their official capacity. As such, defendants conclude that plaintiff’s complaint fails to state a cause of action against police officers in their official capacity because plaintiff has not alleged any supervisory or official capacity of defendants.

The Court rejects defendants' argument as based purely on semantics. It is clear to the Court that plaintiff’s inartful pleading states a claim against the police officers individually and adds that they acted under color of state law.

3. Malicious Prosecution

Defendants argue that plaintiff has failed to state a claim for malicious prosecution under § 1983 because plaintiff has not alleged a bona fide termination of the previous prosecution in his favor. Paragraph 9 of Count III alleges that the criminal charges against plaintiff “were dismissed.” Evidently, according to the defendants, plaintiff must allege something more than dismissal, i.e., acquittal.

Under § 1983, a malicious prosecution claim must implicate the deprivation of some constitutionally protected right. Antonelli v. Burnham, 582 F.Supp. 1067, 1071 (N.D.Ill.1984). In addition, the termination of a prior proceeding in plaintiff’s favor is an essential element in a malicious prosecution claim and must be factually alleged in the complaint. Koch v. Schneider, 550 F.Supp. 846, 854 (N.D.Ill.1982); see also Friedes v. Sani-Mode Manufacturing Co., 33 Ill.2d 291, 295, 211 N.E.2d 286 (1965).

In the present case, the Court finds that plaintiff’s malicious prosecution claim properly implicates a deprivation of liberty under § 1983 because plaintiff alleges imprisonment and posting of bond pending the hearing and dismissal of the charges against plaintiff in the Circuit Court of Cook County, Illinois. The Court rejects the defendants’ argument that plaintiff’s allegation of the dismissal of the criminal charges is insufficient to state a bona fide termination of the previous prosecution in his favor. If the Court accepted defendants’ position that allegations of acquittal are necessary, a police officer could bring charges against the plaintiff here, dismiss them the day before trial, and suffer no recriminations. Such a result would emasculate the protection of the malicious prosecution cause of action. Therefore, the Court denies defendants’ motion to dismiss plaintiff’s malicious prosecution claim brought under § 1983.

4. Claim of Conspiracy

Defendants argue that paragraph 6 of Count I fails to allege facts in support of a conspiracy. Paragraph 6 of Count I alleges that the City and police officers “did agree and conspire to deprive the plaintiff ... of his Civil Rights” and “did commit, cause to be committed and/or aided and abetted each other ... in the omission of all or some of the following acts----” Defendants conclude that plaintiff pleads only eonclusory allegations of conspiracy and therefore the conspiracy claim should be dismissed.

Under § 1983, mere allegations that the parties acted in concert, without any of the necessary factual averments, is insufficient to defeat a motion to dismiss. Koch v. Schneider, supra, 550 F.Supp. at 850; see also Tarkowski v. Bartlett Realty Co., et al., 644 F.2d 1204, 1206 (7th Cir. 1980). In the present case, plaintiff sets forth eonclusory allegations, which state only that the parties “agree and conspire” to violate plaintiff’s civil rights and refer to no specific facts. Therefore, the Court finds that paragraph 6 of Count I and paragraph 6 of Count II are dismissed for failure to state a claim of conspiracy under § 1983.

5. Claim of Policy Against the City of Chicago

Defendants argue that plaintiff fails to sufficiently allege a custom or policy on the part of defendant City of Chicago. Paragraph 10 of Count I alleges that the City had a policy which instructed police officers to charge those “whom they treat as aforesaid, with the offense of disorderly conduct.” Paragraph 11 of Count I alleges that the City “had a custom and policy and knew or was obligated to know and intentionally chose to remain oblivious of the fact” that the defendant officers had previously exhibited “a pattern of unwarranted arrests and unnecessary violence and brutality towards members of the public ...” yet failed to remove, discipline or correct said conduct. Since plaintiff’s allegations of custom and policy are plainly eonclusory, defendants conclude that plaintiff has failed to state a § 1983 claim against the City.

In Giarrusso v. City of Chicago, 539 F.Supp. 690 (N.D.Ill.1982), this Court resolved the question of when a complaint sufficiently alleges a § 1983 claim against a municipality under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Giarrusso, this Court stated that, under § 1983, “... a complaint must be dismissed if, when subject to careful examination, the complaint appears to have merely attached a eonclusory allegation of ‘policy’ to what is in essence a claim based on a single unconstitutional act.” Supra, 539 F.Supp. at 693. It is thus necessary to allege more than a single act of unconstitutional conduct. Knudsen v. D.C.B., Inc., 592 F.Supp. 1232, 1234 (N.D.Ill.1984).

The Court finds the case of Clark v. City of Chicago, 84 C 8765, slip op. (N.D.Ill. Dec. 14, 1984), to be dispositive of the Monell issue in this ease. In Clark, the plaintiff alleged a policy by the City of Chicago of failure to adequately supervise its police officers and a de facto policy implemented by police officers to “summarily punish persons who refuse to obey police orders, whether lawful or not, by means of unlawful arrest, detention, excessive use of force, and the denial of necessary medical attention.” The Court in Clark held that the plaintiff's allegations of custom and policy against the City were plainly conclusory.

In the present case, plaintiff’s allegations differ from those in Clark only insofar as they allege that the City encourages police officers to charge with disorderly conduct persons who the officers beat and unlawfully arrest. While this allegation attempts to link the charges of disorderly conduct and plaintiff’s alleged beating and unlawful arrest together as a City policy of violating civil rights, the Court finds that the incidents which plaintiff complains of are merely isolated incidents and do not manifest a custom or policy of the City. Clark v. City of Chicago, supra, slip op. at 2. Accordingly, the conclusory allegations contained in paragraphs 10 and 11 of Count I of plaintiff’s complaint are dismissed for failure to state a § 1983 claim against the City under Monell.

III. CONCLUSION

In light of its above findings, the Court grants defendants’ motion to dismiss the City of Chicago on all Counts. As to the defendant police officers, the Court grants in part and denies in part the defendants’ motion to dismiss consistent with its above order.

IT IS SO ORDERED.


author: WEBER, District Judge.

text:
    The SHARON STEEL CORPORATION and the Carpentertown Coal and Coke Company, Plaintiffs, v. The VJR COMPANY and James Cook, Sr.
    Civ. A. No. 84-753.
    United States District Court, W.D. Pennsylvania.
    March 8, 1985.
    Robert J. Cindrich, Mansmann, Cindrich & Huber, Pittsburgh, Pa., for plaintiffs.
    William A. Pietragallo, Pittsburgh, Pa., for defendants.
   OPINION

WEBER, District Judge.

This antitrust action is presently before the court on defendant’s motion for reconsideration of this court’s order dated February 12, 1985 in which the court granted plaintiffs’ motion to dismiss the wrongful discharge counterclaim of defendant James Cook, Sr. 604 F.Supp. 420. Specifically defendant requests reconsideration of Count Five which alleges that Sharon Steel and Carpentertown had an employee manual which imposed a contractual obligation to terminate an employee only for just cause. Defendant argues that this court ignored the initial opinion in Banas v. Matthews International Corp., Civil Action No. 1205, Superior Court of Pennsylvania, Pittsburgh, (unpublished) 1982. Defendants assert that this initial Superior Court decision remains, until changed by either the Superior or Supreme Court of Pennsylvania, the law in Pennsylvania, and that it controls this case.

We do not agree, but find the facts asserted by defendant’s counterclaim to be more like those in Richardson v. Charles Cole Memorial Hospital, 320 Pa.Super. 106, 466 A.2d 1084 (1983) which was distinguished by the court in Banas and thus also remains good law. As Banas explains, Richardson held that an employee manual, which stated that (1) the hospital’s policy was “to provide continual employment to all employees whose work [was] satisfactory,” (2) the hospital promised a probationary employment period, and (3) the hospital had established work discipline and grievance procedures, did not provide a definite tenure of employment.

We find that these facts are comparable to those that we considered here. Defendant indicates that the employee manual in question in this case states that (1) performance reviews will be made annually, (2) the performance review result will be part of an employee’s permanent record and (3) the performance reviews will be used in determining an employee’s future salary adjustments, promotion opportunities, future training and development activities, (4) the amount and timing of a merit increase is dependent upon such factors as the date of the employee’s last increase,- his place in the salary range, equity considerations and most importantly, overall job performance and contribution, (5) the company philosophy is to provide fair and equitable compensation so as to attract and retain the most qualified personnel, (6) those who receive the highest overall evaluations are those who are selected for the Management Training Program, (7) the company commits itself to the concept of developing qualified personnel within the organization, and (8) employees are selected for consideration through Supervisor’s recommendations, performance appraisal reviews and the Career Advisory Program. Defendant argues that this shows that the manual promises fair and equitable dealing to employees of Sharon Steel and a promise to dismiss salaried employees only for just cause. Since Cook, Sr. worked for Sharon Steel he thereby accepted this unilateral contract offer and rendered consideration. Further, defendant asserts that it is this contract which was breached in mandating that Cook, Sr. take an early retirement.

On this motion to dismiss we accept all defendant’s claims regarding the manual’s contents as true. However, we do not find nor does defendant assert that there is any express provision in the manual which would prohibit the company from mandating early retirement except for just cause. Therefore, assuming for purposes of this motion that there was a contract, the terms do not include any provision regarding continuity of employment. The terms cited by defendants pertain to advancement, merit increases and training opportunities. Bañas is distinguishable in that an employee-at-will was terminated after taking actions specifically provided for in the employee manual, and after obtaining permissions from his supervisors as expressly provided therein.

An appropriate order will issue.


author: FOREMAN, Chief Judge:

text:
    Robert JETHROE, Plaintiff, v. KOEHRING COMPANY and Allied Construction Equipment Company, Defendants. ALLIED CONSTRUCTION EQUIPMENT COMPANY, Third-party plaintiff, v. H.H. HALL CONSTRUCTION COMPANY, Third-party defendant.
    Civ. No. 83-3361.
    United States District Court, S.D. Illinois, E. St. Louis Division.
    March 8, 1985.

      Dennis W. Shevlin, Cook, Shevlin, Keefe & Chatham, Ltd., Belleville, 111., for plaintiff.
    David R. Jones/James C. Cook, Walker & Williams, P.C., Belleville, 111., for defendant Allied Const.
    Peter von Gontard, Paul N. Venker, Belleville, 111., for defendant Koehring.
    John W. Leskera, Robert D. Francis, Dunham, Boman & Leskera, East St. Louis, 111., for third party defendant.
   MEMORANDUM AND ORDER

FOREMAN, Chief Judge:

Before the Court are third party defendant H.H. Hall Construction Company’s (Hall) Motion to Dismiss Count 1 of the third party complaint (Document No. 53) and Hall’s Motion to Dismiss Count 1 of the crossclaim of Koehring Company (Koehring) (Document No. 55). Plaintiff brings this action for damages sustained from an injury incurred while working in a basket which was lifted by a crane manufactured by Koehring, distributed by Allied, and sold to Hall, plaintiff’s employer.

Both of Hall’s Motions to Dismiss assert that implied indemnity no longer exists in Illinois, but that if it does, Allied, in its third party complaint, and Koehring in its crossclaim, fail to allege a qualitative distinction between the conduct of Hall and that of Allied and Koehring. On May 31, 1984, this Court, in response to a Motion to Dismiss Count 1 of the third party complaint, dismissed Count 1 of the third party complaint for failure to properly allege a pre-tort relationship giving rise to a duty to indemnify, but granted Allied leave to amend. Allied amended Count 1 of the third party complaint on June 15,1984. On August 22, 1984, Koehring cross-claimed Hall for indemnity and contribution.

The issue before the Court, as has been since the advent of the Illinois Contribution Act, is whether implied indemnity survived the birth of contribution among joint tortfeasors. The Illinois Supreme Court has not resolved this issue. Therefore, as is so often the case, this Court must engage in “judicial telepathy” in order to ascertain what the Illinois Supreme Court would do if it faced the issue. Amfac Mortgage Corp. v. Arizona Mall of Tempe, Inc., 583 F.2d 426 (9th Cir.1978). Cf. Lamb v. Briggs Mfg., A Division of Celotex Corp., 700 F.2d 1092 (7th Cir.1983).

Traditionally, implied indemnity was a common law doctrine which provided for the complete shifting of liability on a showing of a pre-tort relationship between the parties and a qualitative distinction between their conduct. Contribution, on the other hand, is a statutory remedy in Illinois which attempts to apportion liability according to the relative fault of the parties. It involves the sharing of damages in proportion to fault and is available to all parties “subject to liability in tort arising out of the same injury....” Ill.Rev.Stat.Ann. ch. 70, § 302(a) (Smith-Hurd 1984).

Prior to the enactment of contribution among joint tortfeasors, the implied indemnity doctrine was expanded to avoid the harshness of a no-contribution rule. The courts first began to change a “qualitative distinction” in the parties conduct to “quantitative difference” in their conduct. Implied Indemnity After Skinner and The Illinois Contribution Act: The Case for a Uniform Standard, 14 Loy.U.Chi.L.J. 531, 536 (1982). Then the courts did away with the pre-tort relationship in cases in which the disparity in fault was great. Id. at 538.

In Van Jacobs v. Parikh, 97 Ill.App.3d 610, 52 Ill.Dec. 770, 422 N.E.2d 979, (1981), a panel of the Appellate Court of Illinois, First District, held that the birth of the contribution did not extinguish indemnity in Illinois, but instead placed indemnity back on its traditional foundation. Id., 52 Ill.Dec. at 772, 422 N.E.2d at 981. Thus, the court reinstated both the pre-tort relationship and the qualitative distinction between the conduct of the parties requirements. Decisions subsequent to Van Jacobs have interpreted it as authority for the proposition that implied indemnity is still a viable concept. See LeMaster v. Amsted Industries, Inc., 110 Ill.App.3d 729, 832-33, 66 Ill.Dec. 454, 442 N.E.2d 1367 (1982); Bednar v. Venture Stores, Inc., 106 Ill.App.3d 454, 457, 62 Ill.Dec. 464, 436 N.E.2d 46 (1982).

In Heinrich v. Peabody Intern. Corp., 99 Ill.2d 344, 76 Ill.Dec. 800, 459 N.E.2d 935 (1984), the Illinois Supreme Court, after a discussion of the differences between the contribution and implied indemnity doctrines, refused to resolve the issue since the appellate court did not address it.

In Lowe v. Norfolk and Western Ry. Co., 124 Ill.App.3d 80, 79 Ill.Dec. 238, 463 N.E.2d 792 (1984), a fifth district court held that “upstream” indemnity is still available in a strict liability case. The court reasoned that the policy behind strict liability, namely to place the onus on the one who has placed a defective product in the stream of commerce and reaped the profit therefrom, would be circumscribed by contribution and its related settlement rules replacing implied indemnity.

In Morizzo v. Laverdure, 127 Ill.App.3d 767, 83 Ill.Dec. 46, 469 N.E.2d 653 (1984), a different panel of the first district attempted to clarify the Van Jacobs decision. The court, relying on the fact that unlike the Uniform Contribution Among Joint Tortfeasors Act or the New York Contribution Act, the Illinois act did not contain a provision retaining indemnity, reasoned that the Illinois Legislature intended to do away with implied indemnity. The court stated:

As we interpret Van Jacobs, this court held that implied indemnity is not extinguished by the passing of the Contribution Act for cases involving some pre-tort relationship between the parties which gives rise to a duty to indemnify, e.g., in cases involving vicarious liability (lessor-lessee; employer-employee; owner and lessee; master and servant). In Lowe this court held that implied indemnity was still viable with respect to “upstream” claims in a strict liability action.
Except possibly for those causes of action based on the theories of indemnity just enumerated, it is our opinion that the Contribution Act extinguished a cause of action for active-passive indemnity in Illinois.

Id. 469 N.E.2d at 658. Judge Shadur of the Northern District of Illinois has adopted Morizzo in U.S. Home Corp. v. Kennedy Construction Co., 601 F.Supp. 84 (N.D.Ill.1984).

Finally, the Illinois Supreme Court in Simmons v. Union Electric Company, 104 Ill.2d 444, 85 Ill.Dec. 347, 473 N.E.2d 946 (1984), again refused to address the issue since the parties failed to raise or brief it. The Simmons court proceeded to apply implied indemnity principles to the facts before it.

For the past two years, this Court has consistently followed the Van Jacobs decision and its rationale. See Mercer v. Shell Oil Co., No. 83-3326 (S.D.Ill. Sept. 21, 1984) (Contractor-subcontractor is an sufficient pre-tort relationship to support implied indemnity claim); Inbodin v. Marathon Oil Co., No. 82-3260 (S.D.Ill. Feb. 22, 1984) (no pre-tort relationship which gives rise to duty to indemnify). Like the Van Jacobs court, this Court is persuaded that the advent of contribution has made the expansion of implied indemnity no longer necessary. However, contribution has not totally abrogated the implied indemnity doctrine. As the Illinois Supreme Court has so explicitly outlined, indemnity and contribution are different doctrines.

The elements of contribution and indemnification are different. A claimant seeking the former need show only a common injury which his acts and those of the contributor combined to bring about and which makes them subject to liability in tort, while one seeking the latter must show a pre-tort relationship with the indemnitor and some significant difference in the nature of their respective conduct which justifies a shifting of liability. The measure of recovery is different: indemnity is all or nothing while absent inability to respond in damages by other culpable parties, no party is liable to make contribution beyond his pro rata share of the common liability as measured by the extent to which his acts or omissions, whatever their nature, proximately caused the injury____ In addition, the absence of a qualitative difference in the nature of the conduct of the guilty parties will defeat a claim for indemnification ... while it is not fatal to a claim for contribution, except, perhaps, where made so by a statute creating a special standard of conduct and absolute liability for its breach. In short, contribution and indemnification are distinct theories óf recovery, and an order dismissing a count seeking either one is not rendered unappealable by the survival of a count seeking the other.

76 Ill.Dec. at 803, 459 N.E.2d at 938 (citations omitted).

While recognizing the distinction, some commentators have taken the position that contribution has fulfilled the implied indemnity function since contribution allows the “court to perform equity directly, without the pretense of applying vague and functional terms.” Implied Indemnity After Skinner and the Illinois Contribution Act: The Case for a Uniform Standard. 14 Loy.U.Chi.L.J. 531, 549 (1982). Other commentators disagree.

A role and a meaningful function for indemnity remain. Indemnity may be properly viewed, at least where there is a pre-tort relationship, as simply the extremity of a broad spectrum, the same spectrum within which we find contribution. A party may obtain contribution if he was 1 percent negligent and the indemnitor 99 percent negligent. However, at some point the culpability of the indemnitor may exceed 99 percent. That point is found where the indemnitee is held liable by operation of law — where the indemnitor owed the indemnitee a duty of care not to expose the indemnitee to liability to a third party and as a consequence of the indemnitor’s breach of that duty, the indemnitee had been held liable on a technical basis only.

Ferrini, The Evolution from Indemnity to Contribution — A Question of the Future, If Any, of Indemnity, 59 Chi. Bar Rec., 254, 268 (1978).

While contribution may theoretically be able to fill the role of indemnity, this Court would be wary of the jury’s distribution of fault in a traditional implied indemnity case where the indemnitee was only technically liable. For example, in an employer-employee or contractor-subcontractor sitúation, once the jury determined that the employer was vicariously liable, or the contractor technically liable (as in a Structural Work Act case), it would be free to apportion fault as it saw fit. The contractor or employer, who under implied indemnity would be able to recover the entire amount of the damages from the indemnitor, would, more likely than not, pay some portion of the damages; the jury basing its decision more on an allocation of damages and an inability to assign a percentage to “technical negligence” than on an allocation of liability. While this potential abuse is present in any jury case, the Court believes that in the traditional implied indemnity situation, the entire loss should be placed on the indemnitor as a matter of law. Having the technically negligent party pay damages, even minimal damages, would only serve to circumvent the deterrent function of damage awards.

In those cases where a party is more than technically negligent, as where the employer has failed to properly supervise the employee, the Court feels that implied indemnity would no longer be an option to the employer since his negligence has proceeded past the mere technical negligence stage.

The Court recognizes that if contribution were the only option available to the technically negligent party the possibility of settlement would increase. The technically negligent party, apprehensive of the jury’s assigning him a percentage of fault, would be more willing to kick some money into the pot available for the plaintiff. However, while settlement should be encouraged, it should not be at the expense of the deterrent objective of damage awards or based entirely on a party’s mere apprehension in taking a case before the jury.

As for Morizzo, the Court notes that although the opinion talks as if implied indemnity is dead, the court did exempt from the burial the implied indemnity doctrine recognized by Van Jacobs and this Court. In any event, this Court does not accept the Morizzo assertion that the Illinois Legislature’s failure to specify that the Illinois Contribution Act did not impair indemnity meant that the Legislature intended to extinguish indemnity. It is hard to imagine that the Legislature intended to sweep away nearly a century of implied indemnity law in Illinois by a mere omission of language which appeared in the New York and Uniform Contribution Act.

Therefore, the Court is of the opinion, that in order to allege a valid claim for implied indemnity in a negligence case the indemnitee must allege a pre-tort relationship between itself and the indemnitor which gives rise to a duty to indemnify and a qualitative distinction between its actions and the actions of the indemnitor. The types of pre-tort relationships the Court is referring to are lessor-lessee, employer-employee, master-servant, principal-agent, owner-leasee, and contractor-subcontractor. A qualitative distinction between the conduct of the indemnitee and indemnitor exists when the indemnitee is only vicariously liable or technically liable. In a strict liability situation, indemnity will lie only for “upstream” claims.

Applying the Van Jacobs standard to the facts at hand, the Court finds that neither Allied, in its third-party complaint, nor Koehring, in its crossclaim, allege the requisite pre-tort relationship which gives rise to a duty to indemnify. Koehring, as manufacturer of the crane in question, does not have a pre-tort relationship with Hall, the plaintiff’s employer, since the crane was distributed to Hall by Allied. Further, although Allied as the seller and Hall as the employer-buyer had pre-tort contact, it is not a pre-tort relationship which gives rise to a duty to indemnify since a buyer-seller relationship would never support a traditional indemnity claim.

Further, even if the Allied-Hall relationship were a type of pre-tort relationship recognized under traditional indemnity concepts, Allied has failed to allege a qualitative distinction between the conduct of it and Hall. If Allied were liable under a negligence theory it would not be a result of technical negligence, but rather would be a result of its failure to warn or inspect the crane before it left its control. If Allied fulfilled these duties, it would not be found liable under a negligence theory. With regard to a strict liability theory, Allied, although potentially liable as a retailer or seller of the alleged defective crane, can not seek indemnity from Hall since Hall is “downstream” in the chain of custody of the crane. See Lowe v. Norfolk and Western Ry. Co., 124 Ill.App.3d 80, 79 Ill.Dec. 238, 463 N.E.2d 792 (1984).

Accordingly, Hall’s Motion to Dismiss Count 1 of the third-party complaint (Document No. 53) and Hall’s Motion to Dismiss Count 1 of Koehring’s crossclaim (Document No. 55) are hereby GRANTED. Count 1 of the amended third-party complaint and Count 1 of Koehring’s cross-claim are hereby DISMISSED.

IT IS SO ORDERED.


text:
    Phyllis HARVEY, Plaintiff, v. J. Max PRICE, Defendant.
    Civ. No. 84-3434.
    United States District Court, S.D. Illinois, East St. Louis Division.
    March 8, 1985.

      Bernard J. Ysursa, Sprague, Sprague & Ysursa, Belleville, 111., for plaintiff.
    Robert W. Schmieder, Wagner, Bertrand, Bauman & Schmieder, Belleville, 111., F. Douglas O’Leary, Moser, Marsalek, Carpenter, Cleary, Jaekel & Keaney, St. Louis, Mo., for defendant.
   MEMORANDUM AND ORDER

FOREMAN, Chief Judge:

Before the Court are defendant’s Motion to Dismiss (Document No. 4) and plaintiff’s Motion to Remand (Document No. 9). Plaintiff filed this action on June 24, 1981, in the Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois. The one-count complaint alleged that the defendant, an attorney, made a misrepresentation to plaintiff’s attorney concerning insurance coverage in an earlier incident. Plaintiff sought $10,000 in this complaint. In July of 1981, the defendant moved to dismiss the complaint for lack of personal jurisdiction. Sometime later, the state court denied this motion stating that personal jurisdiction did lie over the defendant. On November 30,1984, the plaintiff amended his complaint adding a second count which alleged that the defendant’s misrepresentation was willful and wanton. The plaintiff sought in this count $10,000 actual damages plus $500,000 punitive damages. On December 8, 1984, the defendant removed the ease to this Court on the basis that diversity jurisdiction now existed since the amount in controversy exceeded $10,-000. On December 20, 1984, the defendant filed a Motion to Dismiss in this Court, arguing as he did previously in the state court that personal jurisdiction over him is improper.

The plaintiff raises a number of points with regard to removal and the Motion to Dismiss. First, the plaintiff contends that if in fact the Illinois court lacked personal jurisdiction over the defendant then under the derivative jurisdiction doctrine this Court would not possess proper removal jurisdiction. Second, the plaintiff argues that the state court’s ruling on the defendant’s Motion to Dismiss represents the “law of the case” so as to preclude the defendant from relitigating that point. Finally, the plaintiff submits that this Court has personal jurisdiction over the defendant since the defendant has committed a tort within the state so as to trigger application of the Illinois Long-Arm Statute.

The first question the Court must decide is whether this case is properly removable. 28 U.S.C. § 1446(b) provides that:

If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

Here, the original one-count complaint was not removable since the plaintiff did not seek in excess of $10,000. However, with the amendment to the complaint in 1984, the plaintiff sought in excess of $10,000 since punitive damages can be included in the amount of controversy requirement if under the governing law of suit they are recoverable. Bell v. Preferred Life Assurance Soc., 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943). Punitive damages are allowed in Illinois where a defendant has acted wilfully or with such extreme negligence as to indicate reckless disregard for the safety of others. Hazelwood v. Illinois Central Gulf R.R., 114 Ill.App.3d 703, 71 Ill.Dec. 320, 450 N.E.2d 1199 (1983). The plaintiff in the instant case seeks punitive damages because the defehdant’s actions were wilful and wanton. Thus, the case meets the amount in controversy requirements.

Under the “derivative jurisdiction” doctrine a case is not properly removable unless its within the jurisdiction of the state court from which it is removed. Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3372. However, this doctrine only pertains to subject matter jurisdiction; a federal court can retain a removed case for new service if it determines that the state court lacked jurisdiction over the person of the defendant. Id. Further, mere removal of an action does not constitute a waiver of the defendant’s objection that the state court lacks jurisdiction over his person. 1A Moore’s Federal Practice ¶ 0.157[3.-5]. If after the case is removed, the court determines that it lacks personal jurisdiction over the defendant it must dismiss the ease. Id. Remand would be an alternative if, and only if, the state court could possess personal jurisdiction over the defendant when the federal court would not. This scenario would be highly unlikely since a federal court sitting in diversity applies the long-arm statute of the state in which it sits. Therefore, even if the state court did not possess personal jurisdiction over the defendant, this court does possess proper removal jurisdiction over the case.

The plaintiff is also incorrect in his assertion that the state court’s ruling on the defendant’s earlier Motion to Dismiss for lack of personal jurisdiction represents the law of the case so as to preclude a further determination by this Court. Any orders issued by the state court prior to removal are not conclusive upon the parties. This solution is intended

to give the District Court complete control over interlocutory orders made and proceedings had in the cause before removal, and, by necessary implication, to authorize the setting aside or modification of orders made by the state court. If the cause had continued before the state court it could have set aside or modified the orders in question, and what it could have done may be done by the District Court on a rehearing, if the facts warrant such a course. Indeed upon the District Court's assuming jurisdiction of the suit, it must have free hand to dispose of all phases of the controversy.

Dicks-David Co. v. Edward Maurer Co., 279 Fed. 281, 283 (D.N.J.1922). Further, the defendant’s amenability to suit in this Court is a federal matter and the state court’s ruling would not establish the law of the case as to that question. IB Moore’s Federal Practice ¶ 0.404[b]. Therefore, this Court is free to determine whether it has personal jurisdiction over the defendant.

Personal jurisdiction is based on a combination of two elements, amenability to jurisdiction and service of process. Terry v. Raymond International, Inc., 658 F.2d 398, 401 (5th Cir.1981), cert. denied, 456 U.S. 928, 102 S.Ct. 1975, 72 L.Ed.2d 443 (1982). Both must be present to authorize a district court to adjudicate the case. Id. Amenability refers to the substantive reach of the forum’s jurisdiction. Amenability has both state law and federal constitutional significance. Service of process is these physical means by which jurisdiction is asserted. Applying the principles the courts have developed three tests to determine if a court possesses personal jurisdiction over defendant: (1) the assertion of jurisdiction by the law of the forum; (2) conformity of this law with the Constitution; and (3) authority for the means of service of process. Id. The first two tests apply to amenability and the third test applies to service of process.

In a diversity case, as here, the amenability portion of the above tests consists of the following analysis. First, state law (usually the state Long-Arm Statute or case law “doing business” requirement) must assert jurisdiction over the defendant for the cause of action at issue in this suit. Id. Second, the exercise of personal jurisdiction over the defendant must be consistent with the due process clause of the fourteenth amendment. This inquiry consists of deciding whether the defendant has minimum contacts with the forum state “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Terry, 658 F.2d at 401.

With regard to service of process prong of the above test, under Fed.R.Civ.P. 4 either federal or state methods of service are authorized. Congress has permitted nationwide service of process in several specialized statutes. See e.g. 28 U.S.C. § 2361 (1978) (interpleader); 15 U.S.C. §§ 5, 22, 25 (1973) (federal antitrust laws); 15 U.S.C. § 77v(a) (1971) (federal securities laws). In those areas where Congress has not so provided, Fed.R.Civ.P. 4 authorizes that process can be served outside the state in which the district sits only under the state procedures for extraterritorial service or within the 100 mile area. Generally, this has permitted service on an out-of-state defendant pursuant to a state long-arm statute. In this regard the state long-arm statute is utilized twice. First, in a diversity action to assert jurisdiction over the out-of-state defendant for amendability purposes; and second to authorize service on the out-of-state defendant in both diversity and federal question cases.

In the present case the plaintiff alleges the following facts: On December 4, 1978, the plaintiff was involved in a traffic accident on Missouri Avenue, East St. Louis, Illinois, with Ernest Coverdell. After an investigation, the plaintiff forwarded a lien letter to Mr. Coverdell requesting that Mr. Coverdell turn the lien letter over to his insurance carrier. On January 8, 1979, the defendant, the attorney for Mr. Coverdell, contacted the plaintiffs attorney and indicated that he had not had sufficient time to discuss with his client whether or not he had liability insurance. On January 10, 1979, the defendant telephoned the attorney for the plaintiff and indicated that his client had told him that he did not have any liability insurance and that he would attempt to settle the matter on a cash basis. On January 12, 1979, the defendant sent a letter to the attorney for the plaintiff indicating that he had discussed the matter with Mr. Coverdell, and that Mr. Coverdell decided to offer settlement in the amount of $300 or $500. Plaintiff refused said offer and eight months later filed an action against Mr. Coverdell. Upon filing this action, the plaintiff was advised that Mr. Coverdell did have liability insurance. The insurance company later sought and received a declaratory judgment that Mr. Coverdell’s failure to notify the carrier of the accident barred coverage.

The plaintiff further alleges that in the declaratory judgment trial Mr. Coverdell testified that he told the defendant in January of 1979 that he did have liability insurance that would cover this accident. The plaintiff contends therefore that the defendant subjected himself to this Court’s jurisdiction by committing this act of misrepresentation in Illinois. The Illinois Long-Arm Statute provides in pertinent part:

(a) Any person, whether, or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(1) The transaction of any business within this State;
(2) The commission of a tortious act within this State; ____
(b) Service of process upon any person who is subject to the jurisdiction of the courts of this State, as provided in this Section, may be made by personally serving the summons upon the defendant outside this State, as provided in this Act, with the same force and effect as through summons had been personally served within this statute.
(c) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him or her is based upon this Section____

Ill.Stat.Ann. Ch. 110, 2-209 (Smith-Hurd 1984).

Plaintiff contends that pursuant to subdivision (b), the defendant has subjected himself to this Court’s jurisdiction. Specifically, the plaintiff argues that the alleged misrepresentation occurred in Illinois since the defendant, telephoned from Missouri to the plaintiff’s attorney in Illinois.

The Court agrees with the plaintiff that for purpose of the statute, the misrepresentation, occurred, if at all, in Illinois where the plaintiff relied on the defendant’s statements to his detriment. However, the Court recognizes that labeling the defendant’s actions an Illinois tort is merely a matter of convenience over form. Ascertaining precisely where a misrepresentation, made from one state into another, occurred is a difficult if not totally arbitrary process. In any event, this does not end the Court’s inquiry. The Court must determine whether the application of the statute to this defendant meets the due process requirements of the fourteenth amendment.

Pursuant to the due process clause of the fourteenth amendment a defendant may be subjected to a judgment in personam, even if he is not present in the forum, if he has such minimum contacts with the forum such that the maintenance of the suit does not offend judicial notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The test is not a mechanical one, but rather it consists of a weighing of the defendant’s contacts with the forum against other factors such as the “forum state’s interest in adjudicating the dispute, the plaintiff’s interest in obtaining convenient and effective relief, the judicial system’s interest in obtaining the most efficient resolution of the controversy, and the public interest in furthering fundamental substantive social policies.” 28 Fed.Proc. L.Ed. § 65:6 (citing World Wide Volkswagen Corp. v. Wood-son, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

In the instant case, the defendant did not maintain the necessary minimum contacts with Illinois. The defendant did not practice law in Illinois, nor did he attempt to represent Mr. Coverdell regarding the declaratory judgment action filed by the insurance carrier. His only contact with Illinois in this matter was his telephone call to the plaintiff’s attorney. This call was made after the plaintiff asked the defendant whether or not Mr. Coverdell carried liability insurance. Although the commission of a single tort in Illinois may meet the requirements of the fourteenth amendment, here, as stated earlier, the labeling of this tort as an Illinois tort is merely a matter of convenience. Absent any further evidence of the defendant’s contacts with Illinois, the Court will refrain from exercising personal jurisdiction over him.

Accordingly, the defendant’s Motion to Dismiss (Document No. 4) is hereby GRANTED. Plaintiffs Motion to Remand (Document No. 9) is hereby DENIED. The plaintiff’s complaint is hereby dismissed without prejudice for lack of personal jurisdiction over the defendant.

IT IS SO ORDERED.