author: DEVINE, Chief Judge.

text:
    LABORERS’ LOCAL UNION 192, a/w Laborers’ International Union of North America, AFL-CIO v. LOCAL UNION 1915, a/w International Brotherhood of Painters and Allied Trades; Federal Employees Metal Trades Council of Portsmouth; The Metal Trades Department, American Federation of Labor and Congress of Industrial Organizations.
    Civ. No. 84-767-D.
    United States District Court, D. New Hampshire.
    Oct. 23, 1985.

      Lawrence & Lawrence by Paul H. Lawrence, Manchester, N.H., Michael S. Bearse, Finnegan & Underwood, Boston, Mass., for plaintiff.
    Clifford J. Ross, Manchester, N.H., O’Do-noghue & O’Donoghue by Robert Matisoff, Washington, D.C., for Federal Metal Trades Council of Portsmouth and Metal Trades Department, AFL-CIO.
    Boynton, Waldron, Doleac, Woodman & Scott, P.A., by Charles B. Doleac, Portsmouth, N.H., for Local Union 1915.
   ORDER

DEVINE, Chief Judge.

In this action plaintiff Laborers’ Local Union 192, a/w Laborers’ International Union of North America, AFL-CIO (“Laborers’ Local 192”) has brought suit against defendants Local Union 1915, a/w International Brotherhood of Painters and Allied Trades (“Painters Local 1915”), Federal Employees Metal Trades Council of Portsmouth (“FEMTC”), and the Metal Trades Department, American Federation of Labor and Congress of Industrial Organizations (“MTD”). Plaintiff Laborers’ Local 192, pursuant to 9 U.S.C. § 10 and 29 U.S.C. § 185(a), seeks to vacate an arbitration award issued in May 1984 claiming that the arbitrator exceeded his authority in resolving a jurisdictional dispute between Laborers’ Local 192 and Painters’ Local 1915 at the Portsmouth Naval Shipyard. Presently before the Court are plaintiff’s and defendants’ cross-motions for summary judgment, Rule 56, Fed.R.Civ.P.

Both Laborers’ Local 192 and Painters’ Local 1915 are members of the FEMTC, the exclusive bargaining representative of employees at the Portsmouth Naval Shipyard. The FEMTC is organized and operated under the authority of the MTD, a labor organization comprised of several international unions whose members are employed in the metal trades industries. The need for the underlying arbitration in the instant case arose out of a jurisdictional dispute between Laborers’ Local 192 and Painters’ Local 1915 over which local union should represent workers classified as “equipment cleaners” at the Portsmouth Naval Shipyard. Equipment cleaners perform a variety of tasks at the shipyard, including the preparation of deck and bulkhead surfaces for painting and welding as well as the cleaning of nuclear areas aboard submarines to remove radioactive contamination from equipment.

A mechanism for resolution of jurisdictional disputes was established by the Statement of Jurisdictional Policy of the Metal Trades Department, AFL-CIO. The dispute herein was properly processed through the first three steps of the Jurisdictional Policy without resolution. Pursuant to the fourth step of the Jurisdictional Policy, a referee, Archibald Cox, was selected to arbitrate the dispute. Mr. Cox conducted hearings on the issue in Portsmouth in December 1983 and January 1984, and he rendered his decision on May 7, 1984, awarding Painters’ Local 1915 the right to exercise representation rights on behalf of the equipment cleaners employed at the shipyard.

On June 6, 1984, the General President of the Laborers’ International Union of North America, Angelo Fosco, requested that the Executive Council of MTD consider an appeal of Referee Cox’s decision on behalf of Laborers’ Local 192. Paul Burn-sky, President of MTD, notified the parties that the referee’s decision would be considered by the MTD’s Executive Council at an August 28, 1984, meeting. On August 29, 1984, President Bunsky informed the parties that the MTD’s Executive Council had reviewed the case, decided to accept the referee’s decision, and dismissed the appeal filed on behalf of Laborers’ Local 192. Laborers’ Local 192 subsequently filed suit in Rockingham County Superior Court seeking to vacate the arbitration award. Defendants removed the case to this court in November 1984 pursuant to 28 U.S.C. § 1441(b).

Plaintiff Laborers’ Local 192 premises its motion for summary judgment in this case, and hence a vacatur of the arbitration award, on the ground that the arbitrator exceeded his authority in rendering the award. Defendants conversely argue that the arbitrator acted within the scope of his authority. For the following reasons, the Court finds and rules that the arbitrator did not exceed his authority and that the award should be accordingly confirmed.

The Court in reviewing a labor arbitration dispute is cognizant of the substantial deference to be accorded an arbitrator’s decision where arbitration was the agreed-upon method of dispute resolution. This doctrine of judicial self restraint was articulated in a troika of United States Supreme Court cases decided in 1960 known as the “Steelworkers’ Trilogy”. United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); and United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). In American Manufacturing, the labor contract at issue contained a grievance procedure terminating in arbitration of all disputes as to the meaning and application of the contract provisions. The Court noted that

[t]he function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrators. It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator.

Id. at 567-68, 80 S.Ct. at 1346. The Court elaborated in Enterprise Wheel, supra, 363 U.S. at 599, 80 S.Ct. at 1362, that

plenary review by a court on the merits would make meaningless the provision that the arbitrator’s decision is final, for in reality, it would almost never be fi-nal_ It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him, because their interpretation of the contract is different from him.

See also W.R. Grace v. Rubber Workers Local 759, 461 U.S. 757, 764, 103 S.Ct. 2177, 2182, 76 L.Ed.2d 298 (1983) (“Under well established standards for the review of labor arbitration awards, a federal court may not overrule an arbitrator’s decision simply because the court believes its own interpretation of the contract would be the better one”).

The First Circuit Court of Appeals embraced this rule of judicial restraint, most recently in Hoteles Condado Beach, La Concha and Convention Center v. Union de Tronquistas Local 901, 763 F.2d 34 (1st Cir.1985). In that case the Court considered whether a district court vacatur of an arbitration award was mandated. According to the Circuit, a court’s review is

limited to a determination of whether the arbitrator, in making the award, was functioning within his authority as an interpreter of the collective bargaining agreement. This court may engage in a substantive review of the award only to determine whether ‘the award is “unfounded in reason and fact”, ... is based on reasoning “so palpably faulty that no judge, or group of judges, could ever conceivably have made such a ruling”, ... or is mistakenly based on a crucial assumption which is “concededly a non-fact”.’ Bettencourt v. Boston Edison Co., 560 F.2d 1045, 1050 (1st Cir.1977). In such cases, the award ‘fails to draw its essence from the collective bargaining agreement’ and must be overturned. United Steelworkers of America v. Enterprise Wheel & Car Corporation, 1960, 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424.

As the Circuit has also noted, judicial review by a federal court of arbitrated awards is extremely limited since an arbitrator and not the court has the experience and expertise to fairly and efficaciously resolve labor disputes. Local 369, Utility Workers Union of America, AFL-CIO v. Boston Edison Co., 752 F.2d 1, 5 (1st Cir.1984). Moreover, as noted by the Circuit, a federal court is empowered to vacate an arbitrator’s award on the grounds specified in the Federal Arbitration Act, 9 U.S.C. § 10, which states:

In either of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
(a) Where the award was procured by corruption, fraud, or undue means.
(b) Where there was evident partiality or corruption in the arbitrators, or either of them.
(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.
(d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
(e) Where an award is vacated and the time within which the agreement required the award to be made has not expired the court may, in its discretion, direct a rehearing by the arbitrators.

Mobil Oil Corp. v. Local 8-766, Oil, Chemical & Atomic Workers International Union, 600 F.2d 322, 325 (1st Cir.1979). Thus “[t]he courts are precluded from considering factual or legal issues which are by voluntary agreement made the subject of arbitration. Judicial intrusion is restricted to extraordinary situations indicating abuse of arbitral power or exercise of power beyond the jurisdiction of the arbitrator.” Local Union No. 251, International Brotherhood of Teamsters v. Narragansett Improvement Co., 503 F.2d 309, 312 (1st Cir.1974).

Judicial deference to the decision of an arbitrator in a labor dispute is most commonly seen in the context of a dispute involving a collective bargaining agreement between a union and an employer. The policy underlying judicial deference to labor arbitration is not, however, limited to the collective bargaining situation. The First Circuit Court of Appeals in Sheet Metal Workers’ International Union, AFL-CIO, Local Union 17 v. Aetna Steel Products Corp., 359 F.2d 1, 5 (1st Cir.1966), considered an agreement between local unions establishing arbitration machinery designed to deal with jurisdictional disputes, and the Circuit ruled that no less support should be given agreements to which unions resort to resolve their jurisdictional disputes than is given to collective bargaining agreements between management and unions. See, e.g., Bechtel Corp. v. Local 215, Laborers’ International Union of North America, AFL-CIO, 544 F.2d 1207, 1214 (3d Cir.1976).

. In the instant case, both Laborers’ Local 192 and Painters’ Local 1915 are members of the FEMTC, and hence, as noted above, subject to the jurisdictional dispute resolution mechanisms contained in the Statement of Jurisdictional Policy of the Metal Trades Department, AFL-CIO. The Jurisdictional Policy (¶ 4) provides for arbitration of a dispute by a chosen referee and mandates that “the referee’s decision shall be binding upon all parties concerned unless or until a change is made as hereinafter provided”. The Court finds in light /óf the chosen method of dispute resolution ' and its binding nature that the referee’s decision awarding representation rights to Painters’ Local 1915 should be accorded the substantial deference previously described.

Laborers’ Local 192 argues against deference herein, claiming that the referee, Mr. Cox, exceeded his authority when he determined that Laborers’ Local 192 had become so inactive as to have abdicated its representational prerogatives to represent equipment cleaners as conferred by the FEMTC. According to Laborers’ Local 192, the referee was only empowered to resolve conflicting jurisdictional claims between local unions, not to decide whether a union, in this instance, Laborers’ Local 192, had ceased to function as a viable labor organization. The Court finds this argument to be without merit.

Referee Cox was confronted with the specific issue of which local union, Laborers’ Local 192 or Painters’ Local 1915, should represent equipment cleaners at the Portsmouth Naval Shipyard. After listening to testimony and reviewing evidence presented by both parties, he concluded that the right to represent the equipment cleaners should be awarded to Painters’ Local 1915. Referee Cox in arriving at this conclusion found that each of the local unions was functionally able to represent the equipment cleaners. Decision, p. 2. He found however: that for a number of years Painters’ Local 1915 has enjoyed greater support than Laborers’ Local 192 among equipment cleaners in Shop 71, Decision, p. 6; that membership, including equipment cleaners, in Painters’ Local 1915 has increased significantly in recent years, Decision, p. 7; that in May 1982 at least 60 percent of the equipment cleaners had authorized dues deductions payable to Painters’ Local 1915, Decision, p. 8; that membership in Laborers’ Local 192 had similarly declined in recent years, bottoming out at 18 members in February 1983, Decision, p. 9; that Painters’ Local 1915 in recent years has actively organized employees classified as equipment cleaners and has in fact processed grievances on their behalf, Decision, p. 9; and that Laborers’ Local 192 has not during the same time period actively represented employees classified as equipment cleaners, failing to conduct meetings and to elect officers, Decision, p. 9.

The task before Referee Cox was to award jurisdiction over equipment cleaners at the Shipyard to one of two local unions. Once that award had been made, the unsuccessful local union would lose, as occurred in this case, the right to any further representation of equipment cleaners. This specific loss cannot and will not be considered as disestablishing Laborers’ Local 192. Laborers’ Local 192 retained and continues to retain all rights and responsibilities regarding any other employees which it continues to represent, with the exception now of equipment cleaners. Similarly, Referee Cox’s decision does not change any international union jurisdiction nor alter any craft jurisdictions in contravention of the Statement of Jurisdictional Policy of the Metal Trades Department, AFL-CIO (¶¶ 5 and 7). Referee Cox’s finding as to the level of Laborers’ Local 192’s inactivity regarding representation of equipment cleaners was well within the authority accorded him by the parties pursuant to the Statement of Jurisdictional Policy. In addition, to the extent that Laborers’ Local 192 challenges the merits of the award, the Court finds and rules that the award is not unfounded in reason and fact, nor is it so palpably faulty that no judge could ever have made such a ruling. See Bettencourt v. Boston Edison Co., supra, 560 F.2d at 1050.

The Court concludes, therefore, that vacatur of the award would be inappropriate where Referee Cox did not exceed his authority and where his decision is based on reason and fact. Substantial deference must be accorded the arbitrator’s decision herein. As noted over a century ago by the United States Supreme Court, Burchett v. Marsh, 17 How. 344, 349, 58 U.S. 344, 349, 15 L.Ed. 96 (1854):

Arbitrators are judges chosen by the parties to decide the matters submitted to them, finally and without appeal. As a mode of settling disputes, it should receive every encouragement from courts of equity. If the award is within the submission, and contains the honest decision of the arbitrators, after a full and fair hearing of the parties, a court of equity will not set it aside for error, either in law or fact. A contrary course would be a substitution of the judgment of the chancellor in place of the judges chosen by the parties, and would make an award the commencement, not the end, of litigation.

The Court thus defers to and confirms Referee Archibald Cox’s award of jurisdictional rights to Painters’ Local 1915. The Court accordingly grants defendants’ motion and denies plaintiff’s motion for summary judgment.

SO ORDERED.

      . Under Rule 56(c), Fed.R.Civ.P., summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” See Moreau v. James River Otis, Inc., 767 F.2d 6, 9 (1st Cir.1985).

      . The Court in this ruling assumes without deciding that plaintiffs claim is not time barred by either the Maine (14 M.R.S.A. 5938) or the New Hampshire (N.H. RSA 542:8) statute of limitations.

      . Mr. Louis Elesie, representing Laborers’ International Union of North America on behalf of Laborers' Local 192 at the hearings, acknowledged the potential scope and effect of Referee Cox’s decision:
      It’s my understanding that your decision on who has the jurisdiction to represent equipment cleaners will then require the other Union to back off and to give that representational right to the Union you name. Transcript Vol. 1, p. 107.

      . The Court also rejects the contention of Laborers' Local 192 that Painters’ Local 1915 conducted an improper “raid” in violation of Article XX, Section 2, of the AFL-CIO Constitution which provides that “[n]o affiliate shall organize or attempt to represent employees as to whom an established collective bargaining relationship exists with the other affiliate.” This prohibition has no application in the instant case, as noted by Referee Cox, Decision, pp. 10-11, where plaintiff was not the recognized collective bargaining representative for the employees involved.


source: Caselaw Access Project

author: KANE, District Judge.

license: Public Domain

text:
    FERME RIMOUSKI, INC., a Quebec corporation, Plaintiff, v. LIMOUSIN WEST, INC., a Colorado corporation; Jerry Robbe, individually and d/b/a Robbe Limousin; and Deborah Robbe, an individual, Defendants.
    Civ. A. No. 85-K-269.
    United States District Court, D. Colorado.
    Oct. 24, 1985.

      E. Michael Canges, Canges & Volpe, Denver, Colo., for plaintiff.
    Robert P. Manning, Cogswell & Wehrle, Denver, Colo., for defendants.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

In this diversity action, Ferme Rimouski claims that Jerry Robbe, Deborah Robbe, Limousin West and Robbe Limousin wrongfully converted some heifers and their progeny. Jerry and Deborah Robbe move to dismiss the case for three reasons: (1) lack of subject matter jurisdiction because the amount in controversy does not exceed $10,000; (2) Rimouski’s claim under section 18-4-405 of the Colorado Revised Statutes (1973) fails to state a claim upon which relief can be granted; and (3) Ri-mouski has failed to join an indispensable party. For the following reasons, I decline to dismiss Rimouski’s first and third claims for relief. Rimouski’s second claim for relief, however, is dismissed.

BACKGROUND

Rimouski alleges that it was part-owner of eleven head of highly valuable heifers of the Limousin breed. Its ownership was in conjunction with Louis deNeuville who transferred his interest in the heifers to Limousin West. Limousin West, through the actions of Jerry and Deborah Robbe, converted an unknown quantity of the heifers and their progeny. Robbe Limousin received and transferred the heifers and their progeny to third parties. Rimouski prays for an accounting and punitive damages. Rimouski also seeks treble damages and costs of the suit, including attorney fees, pursuant to section 18-4-405 of the Colorado Revised Statutes.

I

Rimouski is a Canadian corporation. Jerry and Deborah Robbe are Colorado residents. Limousin West and Robbe Limousin are Colorado corporations. Rimouski claims that jurisdiction exists under 28 U.S.C. § 1332(a)(2). Jerry and Deborah Robbe admit that diversity of citizenship exists, but claim that I lack subject matter jurisdiction under 28 U.S.C. 1332(a)(2) because Rimouski’s claims do not exceed the sum or value of $10,000.

“The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-90, 58 S.Ct. 586, 590-91, 82 L.Ed. 845 (1938); see also Fehling v. Cantonwine, 522 F.2d 604 (10th Cir.1975). When attorney fees and punitive damages are allowed by applicable state law, they may be included in determining the amount in controversy. See Duderwicz v. Sweetwater Savings Association, 595 F.2d 1008, 1012 (5th Cir.1979); Johns-Manville Sales Corp. v. Mitchell Enterprises, Inc., 417 F.2d 129, 131 (5th Cir.1969); Blank v. Preventive Health Programs, Inc., 504 F.Supp. 416, 421 (S.D.Ga.1980). The plaintiff has the burden of showing that his claim is sufficient to survive the “legal certainty” test. Gibson v. Jeffers, 478 F.2d 216 (10th Cir.1973); Emland Builders, Inc. v. Shea, 359 F.2d 927 (10th Cir.1966).

In this case, Rimouski claims by affidavit that its interest in the cattle exceeds $10,000. Records and affidavits also indicate that the value of the offspring may exceed $10,000. In addition, Rimouski is seeking punitive damages pursuant to section 13-21-102 of the Colorado Revised Statutes (1973) and Rule 101(d) of the Colorado Rules of Civil Procedure (1973). Therefore, Rimouski has satisfied the burden of showing that its claim is sufficient to survive the “legal certainty” test. Accordingly, I decline to dismiss this case for lack of subject matter jurisdiction.

II

In Rimouski’s second claim for relief, Rimouski seeks treble damages and attorney fees under section 18-4-405 of the Colorado Revised Statutes. Jerry and Deborah Robbe assert that Rimouski’s second claim for relief should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because it fails to state a claim upon which relief can be granted.

Section 18-4-405 provides in relevant part:

All property obtained by theft, robbery, or burglary shall be restored to the owner, and no sale, whether in good faith on the part of the purchaser or not, shall divest the owner of his right of such property. ... In any such action, the owner may recover three times the amount of the actual damages sustained by him, if any, and may also recover costs of the action and reasonable attorney’s fees; ....

A person commits theft when he “knowingly obtains or exercises control over anything of value of another without authorization, ... and ... [ijntends to deprive the other person permanently of the use or benefit of the thing of value; _ Colo. Rev.Stat. § 18-4-401 (1973). A co-owner of property cannot commit theft of that property, except when a second co-owner has a special property interest superior to that of the first co-owner. See People v. Zimbelman, 194 Colo. 384, 572 P.2d 830, 832 (1977); People v. McCain, 191 Colo. 229, 552 P.2d 20, 22 (1976); Escobar v. State, 181 So.2d 193, 195 (Fla.App.1965); People v. Dudley, 97 N.Y.S.2d 358 (N.Y.Co.Ct.1950); 17 A.L.R.3d 1394 (1968) and cases cited therein.

In this case, Rimouski has not alleged that it had a special property interest in the cattle superior to that of Limousin West. Therefore, Rimouski has failed to allege that defendants committed theft of the cattle, and that it is entitled to relief under § 18-4-405. Accordingly, Ri-mouski’s second claim for relief fails to state a claim upon which relief can be granted, and is dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Ill

Jerry and Deborah Robbe contend that the Colorado National Bank of Denver was assigned a security interest in seven of the cattle after Limousin West sold the seven cattle. Therefore, the bank is an indispensable party, and this case must be dismissed pursuant to Rule 19 of the Federal Rules of Civil Procedure.

Rule 19(a) of the Federal Rules of Civil Procedure provides:

A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsisent obligations by reason of his claimed interest. ...

When an action is brought against a defendant for wrongful transfer of property, an absent party who has an interest in the property is not indispensable if relief can be fashioned which will not adversely affect the absent party’s interest. Miller v. United States, 583 F.2d 857 (6th Cir.1978); Estes v. Shell Oil Co., 234 F.2d 847 (5th Cir.1956); Miller & Lux, Inc. v. Nickel, 141 F.Supp. 41 (N.D.Cal.1956); 3A J. Moore & J. Lucas, Moore’s Federal Practice, ¶ 19.-09[5] (2nd ed. 1985). For example, property owners in Miller claimed that the United States took their property without compensation. The Sixth Circuit held that the state of Michigan was not an indispensable party, even though it held Title to the lands because the court could award damages without affecting Michigan’s interest in the land. In Estes, the plaintiffs sought an accounting, damages, and injunctive relief based upon alleged wrongful taking of oil from land. The Fifth Circuit held that parties asserting leasehold and royalty interests in the land were not indispensable because the court could award an accounting and damages without affecting the absent parties’ interests. Nor is an absent party indispensable if disposition of the action will not leave the defendant subject to a risk of incurring an obligation to pay both the plaintiff and the absent party for the same debt or demand. See Western Union Telegraph Co. v. Commonwealth of Pennsylvania, 368 U.S. 71, 75, 82 S.Ct. 199, 201, 7 L.Ed.2d 139 (1961); 7 C. Wright & A. Miller, Federal Practice & Procedure, § 1602 at 21-22 (1922).

In this case, Rimouski is not seeking return of the cattle, but is seeking an accounting and damages. Similar to Miller and Estes, I can grant such relief without affecting the bank’s security interest in the cattle. Moreover, such relief will not subject defendants to a risk of incurring an obligation to pay both Rimouski and the bank for the same claim. Any claim made by the bank will be pursuant to the bank’s security interest in the cattle, whereas Ri-mouski’s claim is for conversion. Accordingly, the bank is not an indispensable party under Rule 19 cf the Federal Rules of Civil Procedure.

IT IS THEREFORE ORDERED THAT:

(1) The Robbes’ motion to dismiss Ri-mouski’s first and third claims for relief is DENIED.

(2) The Robbes’ motion to dismiss Ri-mouski’s second claim for relief is GRANTED.

      . Default of Limousin West, Inc. was noted on May 31, 1985.

      . 28 U.S.C. § 1332(a)(2) requires diversity of citizenship and the matter in controversy must exceed the sum or value of $10,000, exclusive of interests and costs.

      . On a motion to dismiss for lack of subject-matter jurisdiction, I can inquire into the facts by affidavits and other matter. Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 1011 n. 4, 91 L.Ed. 1209 (1947); 2A J. Moore and J. Lucas, Moore’s Federal Practice, ¶ [12.07[2.-1] at 12-47 (2nd ed. 1985); 5 C. Wright and A. Miller, Federal Practice and Procedure, § 1350 at 549 (1969).

      .An action for conversion extends to the offspring in existence at the time of the conversion. Arkansas Valley Land & Cattle Co. v. Mann, 130 U.S. 69, 9 S.Ct. 458, 32 L.Ed. 854 (1889); 4 AmJur. Animals § 12 at 259 (1962).


author: WILKINS, District Judge.

text:
    Robert L. WILSON, Plaintiff, v. CITY OF GREENVILLE, A Municipal Corporation; William D. Workman, Mayor; James Snyder, Ralph Anderson, Lillian Fleming, Knox White, Eleanor Welling, Members of the Greenville City Council; Ron Dickerson, Zoning Administrator; Brenda Binns, Sign Inspector; Zoning Board of Adjustment; All in their Official Capacities, Defendants.
    Civ. A. No. 6:85-2730-14.
    United States District Court, D. South Carolina, Greenville Division.
    Oct. 24, 1985.

      Larry K. Wood, Greenville, S.C., for plaintiff.
    Stephen A. Kern, City Atty., Greenville, S.C., for defendants.
   ORDER

WILKINS, District Judge.

Plaintiff moves for a preliminary injunction enjoining Defendants from pursuing present and future state criminal prosecutions against him arising from alleged violations of the local city sign ordinance. For the reasons stated herein, the motion is denied and this action is dismissed.

Plaintiff is a tenant in a home located on a lot zoned exclusively for residential purposes. Plaintiff has for a period of time erected various political and religious signs, each 32 square feet in area, on the property. The City of Greenville contends that these signs do not comply with its ordinance regulating the erection of signs within its city limits. Plaintiff was arrested and charged with a violation of the sign ordinance and convicted in municipal court on October 10, 1985. He timely filed a notice of intent to appeal his conviction to the state circuit court. Meanwhile, Plaintiff elected not to comply with the ordinance. He has since been arrested again on two separate occasions. These cases are now pending in municipal court.

The Complaint indicates Plaintiff ultimately seeks a declaration that the sign ordinance is unconstitutional, a permanent injunction against the City of Greenville and its officials, and monetary damages. Federal courts should not “stay or enjoin pending state court proceedings except under special circumstances.” Younger v. Harris, 401 U.S. 37, 41, 91 S.Ct. 746, 749, 27 L.Ed.2d 669 (1971). In this case, before seeking the relief now requested, Plaintiff should first “set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection.” Younger v. Harris, 401 U.S. at 45, 91 S.Ct. at 751, (quoting Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927 (1926)).

Plaintiff attempts to avoid dismissal by alleging he qualifies under one of the “narrow exceptions” to the Younger rule. Huffman v. Pursue, Ltd., 420 U.S. 592, 611, 95 S.Ct. 1200, 1212, 43 L.Ed.2d 482 (1975). His attempts fail, however, for he has not demonstrated any “great and ¡in-mediate” irreparable injury. Younger v. Harris, 401 U.S. at 46, 91 S.Ct. at 751. The cost, anxiety and inconvenience of defending a criminal prosecution in a city or state court simply does not satisfy this standard.

Plaintiff has further conceded in oral argument before this Court that there was no bad faith or harassment on the part of the city officials in their enforcement of the city ordinance. United Books, Inc. v. Conte, 739 F.2d 30, 33-34 (1st Cir.1984). Thus, his assertion that his first amendment rights are being infringed is not a circumstance sufficient in itself to justify federal intervention while a state action is pending. Younger v. Harris, 401 U.S. at 51, 53, 91 S.Ct. at 754, 755. Further, the exception permitting federal intervention if the ordinance is “flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it” is simply inapplicable here. Huffman v. Pursue, Ltd., 420 U.S. at 611, 95 S.Ct. at 1212.

While Plaintiff obviously prefers to present his constitutional defenses in this Court, the Supreme Court has previously, in effect, rejected this forum shopping argument. See Hicks v. Miranda, 422 U.S. 332, 336-37 n. 3, 95 S.Ct. 2281, 2285 n. 3, 45 L.Ed.2d 223 (1975). In other words, this Court should not at this point address Plaintiffs constitutional arguments because he has an opportunity to have them timely addressed by a competent state tribunal. Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 435, 102 S.Ct. 2515, 2522, 73 L.Ed.2d 116 (1982); Craig v. Barney, 678 F.2d 1200 (4th Cir.), cert. denied, 459 U.S. 860, 103 S.Ct. 133, 74 L.Ed.2d 114 (1982).

Accordingly, Plaintiff’s motion is denied and this action is dismissed without prejudice.

AND IT IS SO ORDERED.

      . There is no difference between Plaintiffs requests for injunctive and declaratory relief. The granting of either would "result in precisely the same interference with and disruption of state proceedings that the long-standing policy limiting injunctions was designed to avoid.” Samuels v. Mackell, 401 U.S. 66, 72, 91 S.Ct. 764, 767, 27 L.Ed.2d 688 (1971).


author: ROBERT H. HALL, District Judge.

text:
    Willie Lee HUDSON, Plaintiff, v. UNION CARBIDE CORPORATION, Defendant.
    Civ. A. C85-3851A.
    United States District Court, N.D. Georgia, Atlanta Division.
    Oct. 25, 1985.

      Thomas William Malone, Malone & Per-cilla, Atlanta, Ga., Phillip R. Raymond, Malone & Percilla, Macon, Ga., for plaintiff.
    Jonathan M. Engram, Swift, Currie, McGhee & Hiers, Atlanta, Ga., for defendant.
   ORDER

ROBERT H. HALL, District Judge.

Presently pending in this products liability action is defendant’s motion for summary judgment. Jurisdiction exists pursuant to 28 U.S.C. § 1332.

CASE HISTORY

This action was initiated in the Fulton County Superior Court of Georgia on March 23, 1984. Hudson v. Union Carbide Corp., No. D-08596 (Fulton County, Ga., Super.Ct.) (Eldridge, J.). Originally, plaintiff named as defendants Union Carbide Corporation, which has its principal place of business in Connecticut, and VMC Products, Inc., d/b/a Rebuilders Supply Company of Atlanta, which has its principal place of business in Georgia.

On January 2, 1985, the Superior Court granted plaintiff’s motion for partial summary judgment and denied each of the defendant’s motions for partial summary judgment on the issue of defendants’ entitlement to set-off of workers’ compensation benefits paid to plaintiff. Both defendants directly appealed the grant of partial summary judgment to plaintiff and made applications for interlocutory appeal to the Georgia Supreme Court from the denial of their motions for partial summary judgment. The applications for appeal were granted on February 5, 1985.

After briefs were filed by all parties and oral argument was heard by the Georgia Supreme Court (on May 8, 1985), but before the appeal was decided, plaintiff settled its suit with defendant VMC Products and voluntarily dismissed VMC Products from this action on August 15, 1985. Defendant Union Carbide, still before the Georgia Supreme Court decided the issue on appeal, then removed this action to federal district court on August 29, 1985, on the basis of diversity of citizenship. See 28 U.S.C. §§ 1441 and 1446(b).

On September 12, 1985, defendant Union Carbide filed the motion for summary judgment which is now pending. With this motion, defendant asks this court to decide the issue which was on appeal to the Georgia Supreme Court prior to removal — that is, defendant asks this court to set aside the January 2, 1985 Order of the Superior Court and rule that defendant is entitled to have the amount of workers’ compensation benefits paid to plaintiff set-off from any verdict plaintiff might receive in this action or, alternatively, rule that Ga. Off’l Code Ann. § 34-9-11, to the extent it bars a suit for contribution and/or indemnification against an employer under Georgia’s Workers’ Compensation Act, is unconstitutional if there is no such right to set-off.

FACTS

The facts relevant to the motion before the court are relatively straightforward.

Plaintiff sustained injuries when a product manufactured by defendant Union Carbide ignited and caused a fire. At the time of the incident, plaintiff was working for Wheelers Manufacturing Company, Inc. He accordingly was paid workers’ compensation benefits by his employer for his injuries.

The parties have stipulated for the purposes of defendant’s motion for summary judgment that plaintiff’s employer was negligent and that this negligence combined with the alleged negligence of defendant to proximately contribute to plaintiff’s injuries. (The court notes that apparently there is some evidence that plaintiff’s employer was in fact.negligent with regard to plaintiff’s injuries; defendant states that the employer was cited for several OSHA violations following the incident in question, including one for the specific apparatus which was being used by plaintiff at the time of the fire.)

DISCUSSION

A. Right to set-off

The first question raised by defendant’s motion for summary judgment, simply stated, is whether under Georgia law a tort-feasor is entitled to set-off from a verdict obtained against it/him/her the amount of workers’ compensation benefits paid to the injured plaintiff by his or her employer when the employer’s negligence in fact contributed to the plaintiff’s injuries.

The Georgia Supreme Court acknowledged the validity of this question in Sargent Industries, Inc. v. Delta Airlines, Inc., 251 Ga. 91, 303 S.E.2d 108 (1983), when it stated in a footnote that:

[even though an employer is immune from third-party impleader under Georgia’s Workmen’s Compensation Act], an argument could still be made that if the employer’s negligence in fact contributed to the employee’s injury, the defendant in the tort action filed by the employee is nonetheless entitled to set off the amount of workers’ compensation paid by the employer from the verdict....

Id. at 94 n. 1, 303 S.E.2d 108 (citations omitted). However, not only was this statement dicta, the Georgia Supreme Court did not indicate whether it deemed the argument meritorious and no Georgia court has addressed the issue since. Thus, this court is left to speculate how a Georgia court would decide the set-off question pending before it.

For the reasons discussed below, the court concludes that a Georgia court, if faced with the question pending, would hold that a defendant tortfeasor is not entitled to have the amount of workers’ compensation paid to the plaintiff employee set-off from the verdict returned against it/him/her even if the evidence at trial establishes that the negligence of the plaintiff’s employer contributed to plaintiff’s injury; accordingly, that is what this court holds. Accord Hardigree v. Wilson Trailer Co., No. C84-1453A (N.D.Ga. Jan. 7, 1985) (Evans, J.) (unpublished). Contra Carter v. Interstate Truck Leasing, Inc., No. C84-730A (N.D.Ga. July 8, 1985) (Moye, J.) (unpublished); Cofield v. Young Industries, Inc., No. C82-2276A (N.D.Ga. Sept. 12, 1984) (Forrester, J.) (unpublished).

At the center of the instant dispute is the continued vitality of Williams Brothers Lumber Co. v. Meisel, 85 Ga.App. 72, 68 S.E.2d 384 (1951), and its progeny. In Meisel the Georgia Court of Appeals held that an employer which has paid workers’ compensation benefits cannot be considered a joint tortfeasor with the tort defendant in an action brought by the injured employee and thus that the verdict returned against the tortfeasor cannot be reduced by the amount of workers’ compensation received by the employee even if the employer’s negligence combined with the negligence of the tort defendant to cause the plaintiff employee’s injuries. Id. at 74-5, 68 S.E.2d 384.

At the time this ease was decided, under Georgia workers’ compensation law an employer had a right to recover the amount of workers’ compensation paid to the employee if the employee recovered from a third-party tortfeasor, Ga.Code Ann. § 114-403, and the Meisel court relied in part on this in its decision:

There is no provision in the [Georgia Workmen’s Compensation Act] which would allow the employee, in a suit by the employer under Code § 114-403, to recover the amount of compensation paid to the employee, to set up a defense that the jury in the suit by the employee against the third party has made a deduction in its verdict of the compensation received by the employee. Therefore, to allow a jury to make such a deduction would result in forcing the employee to account for the compensation twice, whereas the law ... only requires him to account for it once, and then only to the employer who has paid the compensation and not to a third party....

Id. at 75, 68 S.E.2d 384. With the 1972 repeal of the employer’s “statutory lien” (and the employer’s right of subrogation), Ga.Laws 1972, pp. 3-4, the “Meisel rule” must be reexamined. See Aretz v. United States, 456 F.Supp. 397, 407 (S.D.Ga.1978) (“If a right of subrogation by the employer [does] not exist, th[e] argument [for abandoning MeiseU\ might have some foundation.”), cited in Sargent Industries, Inc., supra, 251 Ga. at 94 n. 1, 303 S.E.2d 108.

Upon careful examination, however, the court finds that the “Meisel rule” is still well-founded notwithstanding the current invalidity of the argument that an injured employee may have to account twice for the workers’ compensation benefits paid if the benefits are deducted from the jury verdict in the employee’s suit against the third-party tortfeasor. Accord Hardigree v. Wilson Trailer Co., supra. The reasoning of the Georgia Court of Appeals in Meisel involved more than just the “double accounting” issue quoted above and, in fact, that issue was only mentioned after the court discussed the nature of workers’ compensation benefits and the elimination of the employee’s common law right of action against his or her employer. Meisel, supra, 85 Ga.App. at 74-5, 68 S.E.2d 384. The court finds that this discussion reveals why the “Meisel rule” is still controlling.

The reasoning of the Meisel court was as follows:

Workmen’s compensation liability arises out of a contract created by law and not out of any theory of tort, and such liability is not concerned with any negligence of the employer or the employee. Assuming for the sake of argument that the evidence showed that [the employer] was negligent and that such negligence combined naturally and proximately with that of the defendant to cause the injuries sued for, we think that the question boils down to whether [the employer] could be considered as not being a tort-feasor as to the plaintiff and yet be considered as a joint tort-feasor as to the defendants for the purpose of taking advantage of a payment of compensation under the workmen’s compensation law, as between its “joint tortfeasor,” [the employer], and the plaintiff [the injured employee]. We think not. Compensation paid under the act is not a settlement of a tort claim. Code § 114-103 [now Ga.Offl Code Ann. § 34-9-11] takes away from the employee any common-law right of action against the employer for injuries to the employee due to the negligence of the employer, and the legal effect of this fact is to
eliminate completely the idea that the employer can be a common-law tort-feasor as to the employee. Therefore, there is no basis upon which the employer can be a joint tort-feasor with a third person as to an employee where both employer and employee are under the act....

Id. (emphasis added). The court continued:

It is true that, by virtue of Code § llj-jOS [now Ga.Off’l Code Ann. § 34-9-11], an employer may escape liability for its negligence where such negligence combines with that of another to produce an injury upon an employee of the employer, and would force the third party to pay damages for injuries which were caused not by his negligence alone, but this is one of the benefits that is granted to an employer coming under the act and compensates for the many instances where the employer must pay compensation for an injury for which he would not have been liable at common law....

Id. at 75, 68 S.E.2d 384 (emphasis added).

The repeal of an employer’s statutory lien and right of subrogation does not weaken this reasoning. There continues to be no basis upon which the payment of workers’ compensation benefits can be considered a payment in settlement of a tort claim and thus deducted from a verdict rendered against a" third-party tortfeasor, even assuming that the evidence showed that the employer’s negligence combined with that of the tortfeasor to cause the employee’s injuries.

Notwithstanding the strength of Meisel, there are other reasons which weigh in favor of not establishing a right to set-off workers’ compensation benefits. As Judge Eldridge of the Fulton County Superior Court said in his January 2, 1985 Order, creating a right of set-off would “open the proverbial Pandora’s box of legal problems.” Some of these problems are listed below, borrowing from Judge Eldridge’s Order:

(1) How would the plaintiff employee rebut the tortfeasor’s evidence of employer negligence when the employer’s interests are aligned with the tortfeasor (such as where the tortfeasor is the employer’s insurer or is an important supplier of the employer)?
(2) How would the employer’s negligence be considered for the purposes of comparative negligence? Would the comparative negligence doctrine even apply? Would the plaintiff employee’s negligence be imputed to the employer? Would the employer’s negligence be imputed to the employee? What if the employer and the parties were equally negligent?
(3) Would the verdict be set-off by the entire workers’ compensation payment regardless of how negligent the employer was or would it be set-off by only a percentage of the workers’ compensation benefits based on the employer’s negligence in comparison to the parties’ negligence? If the workers’ compensation benefits did not cover that percentage of the verdict attributed to employer negligence, would the defendant tortfeasor have to pay the difference or would the plaintiff employee’s recovery be short that difference?
(4) How would future compensation benefits affect the verdict? Would the defendant tortfeasor be allowed to set-off only those benefits paid at the time of trial? Would a eontinu-anee of trial be proper until the maximum set-off amount had accrued?
(5) If the verdict included damages for future medical expenses and future lost wages, should future workers’ compensation obligations be set-off and, if so, on what percentage basis?
(6) What would be set-off if the employer had been passively negligent and the defendant tortfeasor had been actively negligent, and vice versa? What would be set-off if the defendant and the employer were both actively negligent or both passively negligent? What would be set-off if the plaintiffs active or passive negligence were considered?
(7) If the plaintiff employee sued the third-party tortfeasor for only pain and suffering, would the defendant be entitled to set-off of workers’ compensation benefits?
(8) If an injured employee sues for pain and suffering and the parent or spouse sues for loss of services, would the defendant tortfeasor be entitled to set-off in one or both suits, and if in both suits, would the compensation benefits be apportioned?
(9) Would compensation death benefits be set-off against a verdict for the full value of the life of the deceased employee?
(10) If the employer was at fault, but the family of the deceased employee was not entitled to compensation benefits, would the defendant be entitled to set-off the benefits that would have been paid?
(11) If the employer was at fault but did not voluntarily pay benefits and the employee failed to timely file a claim so as to constitute a bar, would the defendant be entitled to set-off the benefits that should have been paid?
(12) How would the court instruct the jury to avoid confusion and prejudice to the plaintiff employee? What verdict form would be used so that all determinations relevant to set-off are clear? Would the jury have to be told the amount of workers’ compensation received or could the court effectuate the set-off after the verdict is returned?

See Hudson v. Union Carbide Corp., No. D-08596, slip op. at 3-9 (Fulton County, Ga., Super.Ct. Jan. 2, 1985) (Eldridge, J.).

In light of the confusion, uncertainty, and injustice which would result from recognizing a right to set-off workers’ compensation, in addition to the lack of a legal basis for a right to set-off, the court concludes that a tortfeasor has no right to set-off the amount of workers’ compensation paid to the plaintiff employee even where the employer’s negligence contributed to the employee’s injuries.

The court does not find that footnote 1 of Sargent Industries, Inc., supra, mandates a different result, contrary to what defendant maintains. This footnote was dicta and merely said that “an argument could ... be made” that a tortfeasor is entitled to set-off of workers’ compensation. The Georgia Supreme Court was apparently concerned about the inequities resulting from not holding a negligent employer to the principle of contribution, but did not reach a conclusion as to whether a set-off of workers’ compensation could be implemented to resolve those inequities. Obviously the issue had not been briefed for the court since it was not relevant to the Meis-el case and the court’s comment cannot be considered indicative of how the court would feel if it were presented with legal argument. Accord Hardigree v. Wilson Trailer Co., supra. But see Carter v. Interstate Truck Leasing, Inc., supra; Cofield v. Young Industries, Inc., supra.

Even the Sargent Industries, Inc. court’s citation to Aretz v. United States, supra, does not convince the court that the Georgia Supreme Court would hold other than what this court holds today. The Aretz court’s comment regarding the Meis-el rule — that there might be some foundation to the argument that the Meisel rule is no longer valid with the repeal of the employer’s right of subrogation under Georgia’s workers’ compensation laws — was dicta and is inconclusive as to how the court would have resolved the issue had it considered all the issues carefully. Citation to this case by the Georgia Supreme Court simply indicates that that court would conclude that the rule needed to be abandoned upon reconsideration.

The court is also not persuaded by defendant’s citation to foreign authorities which recognize a right to set-off workers’ compensation benefits. The states which allow a set-off of workers’ compensation benefits do so on the theory that a negligent employer, who in those states has a right of subrogation or a right to recover the amount of workers’ compensation paid if the employee recovers from a third-party tortfeasor, should not be allowed to profit from its/his/her own negligence. See, e.g., Santisteven v. Dow Chemical Co., 362 F.Supp. 646 (D.Nev.1973), aff'd 506 F.2d 1216, 1220 (9th Cir.1974) (applying Nevada law); Tucker v. Union Oil Co. of California, 100 Idaho 590, 603 P.2d 156 (1979); Witt v. Jackson, 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641 (1961); Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886 (1953). This theory has no relevance in Georgia because the employer will not profit from its negligence if the third-party tortfeasor’s verdict is not reduced by the amount of workers’ compensation paid, there being no right of subrogation or right to recover the compensation paid if the employee prevails in a suit against the third-party tortfeasor.

The fact that plaintiff may recover twice for his injuries also does not sway the court. Georgia does not have an absolute bar to “double recovery” as evidenced by the collateral source rule, which in effect allows a plaintiff double recovery if he or she recovers from a tortfeasor and is compensated by a non-tortfeasor as well. See

McGlohon v. Ogden, 251 Ga. 625, 625 n. 1, 308 S.E.2d 541 (1983). That an injured employee may recover twice for his or her injuries is the result of there being no right of subrogation nor right to reimbursement for employers and the no-fault nature of workers’ compensation payments. The court cannot alter this result absent a sound legal basis.

Finally, the court does not find the refusal to recognize a right to set-off workers’ compensation benefits deprives defendant, and others effected by this ruling, of constitutional rights guaranteed under either the United States Constitution or the Constitution of Georgia. Defendant has no constitutional right to have a verdict rendered against it reduced by the amount of workers’ compensation benefits received by plaintiff; defendant is not being deprived of a right given to others — there is no statutory or common law right to have a tort verdict reduced by amounts paid to the plaintiff not in settlement of the tort claim involved.

Just as the Meisel court did, this court recognizes the inequities of forcing a tort-feasor to pay all the damages for injuries which were not caused by its/his/her negligence alone, but finds that these inequities must be resolved by the legislature and not by the courts.

B. Constitutionality of Ga.Offl Code Ann. § 34-9-11

The second question raised by defendant’s motion for summary judgment is whether Ga.Off’l Code Ann. § 34-9-11 (the exclusive remedy provision of Georgia’s Workmen’s Compensation Act), to the extent it has been construed to bar a suit for contribution and/or indemnification against an employer under Georgia’s Workmen’s Compensation Act, is unconstitutional if there is no right to set-off the workers’ compensation benefits paid to an injured employee when the negligence of the plaintiff employee’s employer contributed to the employee’s injuries.

Defendant urges the court to answer this question in the affirmative. In defendant’s words:

[W]here, as here, O.C.G.A. § 34-9-11 discriminates against an alleged tortfeasor by denying it a substantive right of contribution or indemnification elsewhere existing in the tort system, and without providing it with a reasonable substitute for such rights, the exclusive remedy provision must be stricken as unconstitutional.

(Exhibit A to defendant’s brief, p. 20).

The court again rules against defendant. Section 34-9-11 is not unconstitutional under either the United States Constitution or the Constitution of Georgia. There is a rational basis for abrogating a tortfeasor’s right to contribution and/or indemnification from an employer who has paid workers’ compensation benefits: the legislature, balancing the competing interests involved, does not want the employer’s liability to exceed his/her/its liability under the workers’ compensation law, a liability intended to result in the most efficient and certain rehabilitation of employee injuries without regard to fault. If there were a right of contribution and/or indemnification from the employer, the employer would have to pay more than that required by the Workmen’s Compensation Act (there being no legal basis for setting-off the workers’ compensation paid by the employer and there being no right of subrogation nor right to reimbursement from the employee on the part of the employer).

The inequities which result from not holding an employer under the workers’ compensation scheme to the principle of contribution must be resolved by the legislature and not by the courts. CONCLUSION

In sum, the court DENIES defendant’s motion for summary judgment, finding that defendant is not entitled to a set-off of the workers’ compensation benefits received by plaintiff.

      . Whether under Georgia law a tortfeasor is entitled to set-off from a verdict obtained against it/him/her the amount of workers’ compensation benefits paid to the injured plaintiff by his or her employer when the employer's negligence did not contribute to the plaintiff’s injuries was recently answered in the negative by the court. See Phillips v. Liberty Mutual Ins. Co., No. C83-2226A (N.D.Ga. Sept. 25, 1985) (Hall, J.). Contra Carter v. Interstate Truck Leasing, Inc., No. C84-730A (N.D.Ga. July 8, 1985) (Moye, J.) (unpublished).

      . Of course, if defendant had not removed this action to federal district court when it did, the Georgia Supreme Court would have ruled on the issue and speculation by this court (and other federal courts) would have been avoided, obviously the preferred course of events from this court’s perspective. Defendant had the right to remove this action under 28 U.S.C. § 1446(b) as it is now written, however, and this court must accept the situation.

      . Strictly speaking, the “Meisel rule” is not simply an application of the “collateral source rule” of tort law since the collateral source rule is invoked only when the source of the collateral payment is not a joint tortfeasor with the defendant tortfeasor. See McGlohon v. Ogden, 251 Ga. 625, 625 n. 1, 308 S.E.2d 541 (1983). However, because Meisel held that in the workers' compensation context, an employer who is jointly negligent with a third-party tortfeasor cannot be considered a joint tortfeasor, the Meis-el rule is sometimes equated with the collateral source rule. See, e.g., Aretz v. United States, 456 F.Supp. 397, 407 (S.D.Ga.1978).

      . Absent the threat of a suit for contribution or indemnification, see Ga. State Tel. Co. v. Scarboro, 148 Ga.App. 390, 251 S.E.2d 309 (1978) (an employer who has paid workers' compensation benefits cannot be sued for contribution as a joint tortfeasor), the employer may not have an interest in establishing its/his/her lack of negligence.

      . For an example of how one state has answered these questions, see Tucker v. Union Oil Co. of Cal., 100 Idaho 590, 603 P.2d 156 (1979).

      . Defendant also cites to the rule of Kansas as support for a right to set-off. Kansas would hold the third-party tortfeasor liable for only its/his/her proportion of the negligence under the state’s comparative negligence statute. See Scales v. St. Louis-San Francisco R. Co., 582 P.2d 300, 2 Kan.App.2d 491 (1978), citing Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978). The Kansas rule would not work in Georgia because Georgia has joint and several liability.

      . See Ga. State Tel. Co. v. Scarboro, supra; Ga. Power Co. v. Diamond, 130 Ga.App. 268, 202 S.E.2d 704 (1973); Central of Ga. R. Co. v.

        Lester, 118 Ga.App. 794, 165 S.E.2d 587 (1968). See also Coleman v. General Motors Corp., 386 F.Supp. 87 (N.D.Ga.1974) (applying Georgia law); O’Steen v. Lockheed Aircraft Corp., 294 F.Supp. 409 (N.D.Ga.1968) (applying Georgia law).

      . But see Sunspan Eng’g and Constr. Co. v. Spring-Lock Scaffolding Co., 310 So.2d 4, 8 (Fla.1975) (precluding a third-party tortfeasor from seeking contribution from a negligent employer is "an arbitrary and capricious innovation without any rational basis furthering any overpowering public necessity_” in violation of the state and federal constitutions); Carlson v. Smogard, 298 Minn. 362, 215 N.W.2d 615 (1974) (abrogation of third-party tortfeasor’s common law right to indemnification from a negligent employer without a legitimate objective and without providing a reasonable substitute is unconstitutional).


author: JUNE L. GREEN, District Judge.

text:
    UNITED STATES STUDENT ASSOCIATION, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, Defendant.
    Civ. A. No. 82-1686.
    United States District Court, District of Columbia.
    Oct. 25, 1985.

      David L. Sobel, Dobrovir, Oakes & Geb-hardt, Washington, D.C., for plaintiff.
    Richard A. Stanley, Asst. U.S. Atty., Washington, D.C., for defendant.
   OPINION

JUNE L. GREEN, District Judge.

This matter comes before the Court on the defendant’s motion for summary judgment regarding the plaintiff’s request for documents under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (1982); the plaintiff’s opposition thereto; the defendant’s reply; supplemental briefings on the motion by both parties; affidavits submitted by both parties; and the entire record herein. For the reasons stated below, the Court grants the defendant’s motion for summary judgment.

I. Statement of Facts

The above-styled action arises out of the United States Student Association’s (“USSA”) 1977 request for disclosure of all records in the possession of the Central Intelligence Agency (“CIA”), concerning the United States National Student Association (“USNSA”), the predecessor organization to the USSA. Defendant’s Statement of Material Facts ¶ 1. From 1952 to 1967 a covert relationship existed between the USNSA and the CIA. During that period, the CIA secretly funded the USN-SA and made occasional “operational use” of individual students. Following public disclosure of this relationship in February 1967, the CIA and the USNSA officially terminated their association. Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment at 2-3.

After delays due to negotiations regarding fees, the scope of the request and a FOIA request backlog, the USSA filed suit for injunctive relief. Defendant’s Statement of Material Facts ¶¶ 2-9. By Court stipulation approved on July 30, 1982, the CIA agreed to release certain unclassified documents, file a Vaughn affidavit (affidavit of Louis J. Dube, Information Review Officer for the Directorate of Operations, CIA), and the first installment of a Vaughn index. The CIA also agreed to file additional installments of the Vaughn Index on a monthly basis until all documents were so indexed. Finally, the CIA agreed to file additional affidavits or indexes if necessary. Id. ¶ 10.

The eighth and final Vaughn Index installment was made on April 6, 1983. Id. 1128. Of the 1,484 documents at issue (30 of the 1,514 documents were stipulated out of the case on August 13, 1982), 121 were released to the USSA in whole or in part. Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment at 3.

By order, the defendant submitted to the Court an unexpurgated copy of every twenty-fifth document it had indexed in this action for an in camera and ex parte inspection. Defendant’s Statement of Material Facts II34. Thereafter, on August 15, 1983, the Court concluded that the defendant was not withholding any officially acknowledged information and, accordingly, denied the plaintiff’s motion to compel discovery. Id. at ¶ 35.

The CIA now moves for summary judgment, asserting that they have complied fully with the USSA’s information request, save the information properly withheld pursuant to certain FOIA exemptions, 5 U.S.C. § 552; Exemption (b)(1) (to protect classified material); Exemption (b)(3) (to protect intelligence sources and methods); Exemption (b)(5) (to protect predecisional privileged information); and Exemption (b)(6) (to protect personal and other files for privacy reasons). The USSA opposes the CIA’s motion on the grounds that (a) the affidavit of Louis J. Dube is defective, and (b) that the CIA has failed to carry its burden of justifying the withholding of information requested by the USSA under the FOIA.

This action was stayed by Court order on October 2, 1984, pending a decision by the Supreme Court in Sims v. Central Intelligence Agency, — U.S. -, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985). Following the Supreme Court’s ruling in Sims on April 16, 1985, the parties submitted additional briefings on the applicability of the Sims decision to the issues before the Court.

II. Conclusions of Law

A. The Sufficienty of the Dube Affidavit

Louis J. Dube’s affidavit, executed on September 7, 1982, in conjunction with the first installment of the Vaughn Index, and incorporated into the defendant’s motion for summary judgment by reference, constitutes the primary support of that motion. At the time Mr. Dube executed the affidavit, he had personally reviewed only 186 of the 1,484 documents at issue. Thus, the plaintiff contends that Dube’s affidavit fails the Fed.R.Civ.P. 56(e) “personal knowledge” standard as to the remaining 1,328 documents not included in the first Vaughn installment. Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment at 4-5.

The plaintiff’s narrow view of the Dube affidavit is unconvincing. The Stipulation of July 30, 1982 (“Stipulation”) provided, inter alia, “On September 7 1982, defendant CIA shall file an appropriate full Vaughn affidavit ... that will provide the general rationale for whichever exemptions might be claimed for virtually any or all of the documents being processed-” Stipulation 112. For specific document-by-document review and exemption claims the “CIA shall subsequently on a monthly basis ... file additional installments of the Vaughn index_” Stipulation ¶ 3. The CIA acted in full compliance with the Stipulation.

The Dube affidavit restates the principles incorporated in the Stipulation, “[T]his affidavit will set forth the justifications upon which the CIA intends to rely in making deletions or denials as reflected in each index installment.” Dube Affidavit ¶ 5. Further, the affidavit “address[ed] and ... incorporate^] each and every monthly installment of the Index....” Dube Affiavit ¶ 2. Moreover, each monthly installment of the Vaughn Index explicitly referred back to the Dube affidavit for the rationales for withholding.

The plaintiffs FOIA request covered a period from January 1, 1945 to the present, involving thousands of documents. The disclosure scheme envisioned by the Stipulation was designed to respond to the plaintiffs extensive document request in the most efficient, expeditious manner. Rather than restate the justifications for withholding certain documents in each monthly installment, the indexes were carefully cross-referenced with the Dube affidavit. See, e.g., USSA v. CIA Document Disposition Index. In addition, the Stipulation provided that additional affidavits would be filed if the CIA’s document-by-document review revealed justifications not addressed in Mr. Dube’s general affidavit. Stipulation 11112, 7.

Moreover, the Court finds the supplemental affidavit of Louis J. Dube (“Supp. Affidavit”), filed on June 29, 1984, conclusive. Mr. Dube addresses himself to the present confusion:

The general justifications for denial set forth in my original affidavit were never intended to be an exhaustive list of all categories of information contained in the 1,514 documents. Rather, if I discovered new information as my review of each installment progressed, I fully intended to submit a supplemental affidavit explaining any new rationale for withholding. Ultimately, I did not discover any new categories of information not covered by my original affidavit. The fact remains that ... I reviewed every single one of the documents at issue and made my determinations to withhold or release accordingly.

Supp. Affidavit 113.

The Court’s reliance on Mr. Dube’s supplemental affidavit is proper under Fed.R. Civ.P. 56(e) (“The court may permit affidavits to be supplemented ... by ... further affidavits.”); see also Ray v. Turner, 468 F.Supp. 730, 735 (D.D.C.1979) (adequacy of supplemental affidavit). Based on Mr. Dube’s supplemental affidavit and the explicit incorporation of the Dube affidavit in each monthly index installment, the Court finds that Mr. Dube’s “personal knowledge” extended to all 1,484 documents reviewed, in accordance with Fed.R.Civ.P. 56(e).

B. The FOIA Exemptions

The CIA claims that either of two FOIA exemptions — Exemption 1, covering classified material, and Exemption 3, covering material which other statutes expressly protect from disclosure — supports its decision to withhold most of the requested documents. Other documents or portions of documents have been withheld under Exemptions 5 and 6 of the FOIA, 5 U.S.C. §§ 552(b)(5) and (6). Exemption 5 protects from disclosure communications that are deliberative in nature or predecisional and, thus, privileged. Exemption 6 exempts from disclosure information, the disclosure of which would constitute a clearly unwarranted invasion of a person’s privacy.

Exemption 1

Exemption 1 of the FOIA protects from disclosure matters that are “specifically authorized under criteria established by an Executive order to be kept secret in the interest of the national defense and ... are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). On April 2, 1982, President Reagan issued a new Executive Order on National Security Information, No. 12856, 47 Fed.Reg. 14874. The order became effective on August 1, 1982. Id. at 14884.

In determining whether an agency has withheld information properly pursuant to Exemption 1, the Court must “determine the matter de novo.” 5 U.S.C. § 552(a)(4)(B); see Miller v. Casey, 730 F.2d 773, 776 (D.C.Cir.1984). Because “ ‘[executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosure,’ ” however, courts are required to “ ‘accord substantial weight to an agency’s affidavit concerning the details of the classified status of a disputed record.’ ” Salisbury v. United States, 690 F.2d 966, 970 (D.C.Cir.1982) (quoting S.Rep. No. 1200, 93d Cong., 2d Sess. 12 (1974) (conference report)), U.S.Code Cong. & Admin. News 1974, pp. 6267, 6290; accord Abbots v. Nuclear Regulatory Commission, 766 F.2d 604, 606 (D.C.Cir.1985).

Order 12356 sets out both substantive and procedural criteria for withholding information. In order to withhold information under Exemption 1 of the FOIA, the government must demonstrate that the information “is in fact, properly classified pursuant to both procedural and substantive criteria” contained in the Executive order. S.Rep. No. 1200, 93d Cong., 2d Sess. 12 (1974); see also Lesar v. U.S. Department of Justice, 636 F.2d 472, 483 (D.C.Cir.1980).

Section 1.5 of Executive Order 12356 governs the procedures for classification. It provides that classified documents be marked with the level of classification, the identity of the original classifying official, the agency and office of origin, and the date or event for declassification or the notation “Originating Agency’s Determination Required.” The affidavit and index of Louis J. Dube states that each document designated as properly classified and withheld under Exemption 1 fully complies with these procedural requirements. Dube Affidavit, § 1.

Executive Order 12356 states that information shall be classified if it concerns one of the ten substantive categories of information set forth in section 1.3 of the order, and if the release of such information “reasonably could be expected to cause damage to national security.” Section 1.3(b). Mr. Dube declares in his affidavit that the classified information at issue in this case fulfills the substantive criteria of Executive Order 12356. Dube Affidavit ¶ 6(a).

The two affidavits of Mr. Dube, along with the extensive Document Disposition Index, clearly describe each document and give specific justifications for nondisclosure. See Halperin v. CIA, 629 F.2d 144, 148 (D.C.Cir.1980) (agency decision entitled to great deference where supported by sufficient detail). After conducting its de novo review, the Court is satisfied that the affidavits and the Vaughn Index demonstrate “a logical connection between the information the claimed exemption.” Salisbury v. United States, 690 F.2d at 970; Dube Affidavit, §§ I, II; Supplemental Affidavit at it 4; see also Mead Data Central, Inc. v. United States Department of Air Force, 566 F.2d 242, 261 (D.C.Cir.1977).

Summary judgment is in order where an agency’s affidavits “ ‘describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection between the information and the claimed exemption’ ... and ‘are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.’ ” Abbots v. Nuclear Regulatory Commission, 766 F.2d at 606 (quoting Salisbury v. United States, 690 F.2d at 970 and Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981)); see also Lesar v. United States Department of Justice, 636 F.2d at 481. The record reveals no bad faith on the defendant’s part, and the plaintiff has not shown that the information was classified improperly. Accordingly, the Court finds that the CIA has invoked properly Exemption 1 to withhold information specifically authorized under the criteria established by Executive Order 12356.

Exemption 3

Exemption 3 of the POIA exempts from disclosure matters that are

specifically exempted from disclosure by statute ..., provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.

5 U.S.C. § 552(b)(3). The defendant invokes the protection of Exemption 3 independently of its coextensive claim under Exemption 1. See Gardels v. CIA, 689 F.2d 1100, 1107 (D.C.Cir.1982) (“Exemption 3 is independent of Exemption 1 and may be invoked independently.”) At the risk of being redundant, the Court addresses the Exemption 3 claim despite having already found that the CIA properly invoked Exemption 1, supra. Exemption 3 casts a much wider net than the more technical Exemption 1 as the Supreme Court’s recent decision in CIA v. Sims, — U.S.-, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985), makes clear.

The CIA relies on Section 102(d)(3) of the National Security Act of 1947, 50 U.S.C. § 403(d)(3), in invoking Exemption 3. See also Dube Affidavit, §§ I, II, V-VIII. Section 102(d)(3) of the National Security Act directs the Director of the CIA to protect intelligence sources and methods from unauthorized disclosure. It is well settled that section 102(d)(3) of the National Security Act qualifies under Exemption 3. Gardels v. CIA, 689 F.2d at 1103; Military Audit Project v. Casey, 656 F.2d at 736-37 n. 39.

The Supreme Court in Sims held that section 102(d)(3) of the National Security Act encompasses all “sources” used by the CIA to collect information related to its “intelligence function,” whether or not the “sources” are classified or were even promised confidentiality. “The legislative history of § 102(d)(3) also makes clear that Congress intended to give the Director of Central Intelligence broad power to protect the secrecy and integrity of the intelligence process.” CIA v. Sims, — U.S. -, 105 S.Ct. at 1888.

The plaintiff had relied on a narrower interpretation of section 102(d)(3) in Sims v. Central Intelligence Agency (“Sims I”), 642 F.2d 562 (D.C.Cir.1980) and Sims v. Central Intelligence Agency (“Sims II”), 709 F.2d 95 (D.C.Cir.1983), cert. granted, 465 U.S. 1078, 104 S.Ct. 1438, 79 L.Ed.2d 759 (1984). Plaintiffs Opposition to Defendant’s Motion for Summary Judgment at 7-9. There, the appeals court ruled that the term “intelligence sources and methods” is limited to individuals and institutions who provide information the CIA needs to perform its intelligence function that the agency could not reasonably expect to obtain without guaranteeing confidentiality to those who provide it. Sims I, 642 F.2d at 571; Sims II, 709 F.2d at 97.

Rejecting that interpretation, the Supreme Court stated:

Section 102(d)(3) does not state ... that the Director of Central Intelligence is authorized to protect intelligence sources only if such protection is needed to obtain information that otherwise could not be acquired. Nor did Congress state that only confidential or nonpublic intelligence sources are protected_ Congress simply and pointedly protected all sources of intelligence that provide, or are engaged to provide, information the Agency needs to perform its statutory duties with respect to foreign intelligence.

CIA v. Sims, — U.S. at -, 105 S.Ct. at 1888. In addition, the Court finds that the CIA has demonstrated, by affidavits and the extensive Vaughn Index, that “release of the requested information can reasonably be expected to lead to unauthorized disclosure of sources and methods.” Phillippi v. Central Intelligence Agency, 546 F.2d 1009, 1015 n. 14 (D.C.Cir.1976); Dube Affidavit 116(b), § II; see also Plaintiff’s Second Supplemental Memorandum in Opposition to Defendant’s Motion for Summary Judgment at 2.

Exemptions 5 and 6

Exemption 5 of the FOIA permits agencies to withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The Supreme Court has held that this exemption protects the “ ‘decision making processes of government agencies' ” and includes “ ‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’ ” National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29 (1975) (citations omitted).

There is a two-pronged test to determine whether a document may be withheld under Exemption 6. First, the document must be part of a “personnel” file, a “medical” file, or a “similar” type of file. 5 U.S.C. § 552(b)(6). Second, the disclosure of such a file must constitute a “clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). See Department of the Air Force v. Rose, 425 U.S. 352, 370-82, 96 S.Ct. 1592, 1603-09, 48 L.Ed.2d 11 (1976).

The plaintiff raises no opposition to the documents or segments of documents withheld under the authority of these two objections. Accordingly, the Court need not address the matter.

C. Information Subject to Prior Official Disclosure

The plaintiff contends that some details of the USNSA-CIA relationship were disclosed in hearings before a Senate committee in 1976. Senate Select Committee to Study Government Operations with Respect to Intelligence Activities, Final Report. S.Rep. ©o. 755, 94th Cong., 2d Sess. [1976] Book I (“Church Committee Report”). Plaintiff also contends that these details do not appear in the material released to the plaintiff. Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment at 23.

It is well established that specific information cannot be withheld if it has been the subject of prior “official and documented disclosure.” Afshar v. Department of State, 702 F.2d 1125, 1133 (D.C.Cir.1983). The plaintiff must demonstrate that the withheld information has already been specifically revealed to the public and that it appears to duplicate that being withheld. Dow, Lohnes & Albertson v. Pres. Com. on Broadcasting to Cuba, C.A. 82-0929 (D.D.C., Jan. 23, 1984), slip op. at 15; see also Afshar v. Department of State, 702 F.2d at 1133.

The Court finds that the plaintiff’s contentions do not suffice to defeat the defendant’s motion for summary judgment. The plaintiff’s claims here are unsupported by. factual submissions controverting the defendant’s affidavits. See Miller v. Casey, 730 F.2d at 777; Military Audit Project v. Casey, 656 F.2d at 738. The USSA makes general assertions of prior disclosure, but they do not posit that particular information has been disclosed publicly. Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment at 24-25. Such assertions are insufficient to meet the plaintiffs burden. Dow, Lohnes & Albertson v. Pres. Com. on Broadcasting to Cuba, C.A. 82-0929, slip op. at 15.

III. Conclusion

Mandatory disclosure under the FOIA is limited to those agency records which fall outside the exemptions enumerated in 5 U.S.C. § 552(b). Where an agency demonstrates that requested records are not within the purview of the Act or are protected by one or more statutory exemptions, the suit is at an end. 5 U.S.C. § 552(a)(4)(B). Here, the legal principles are clear. The affidavits and accompanying Document Index supporting the defendant’s motion demonstrate that the documents which have been withheld, or partially withheld, are exempt from disclosure under the FOIA and that there are no genuine issues of material fact. See Abbots v. Nuclear Regulatory Commission, 766 F.2d at 606 (weight of the evidence); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 1610, 26 L.Ed.2d 142 (1970) (standard for summary judgment).

The Court grants the defendant’s motion for .summary judgment. An appropriate />rder is attached.

ORDER

Upon consideration of the defendant’s motion for summary judgment as to plaintiff’s request for documents under the Freedom of Information Act (“FOIA”), plaintiff’s opposition thereto, defendant’s reply, supplemental briefings by both parties, the Vaughn index filed by the defendant, affidavits of both parties; and the entire record herein, and for the reasons stated in the accompanying opinion, it is by the Court this 25th day of October 1985,

ORDERED that summary judgment is granted in favor of the defendant as to plaintiff’s request for documents under the FOIA; and it is further

ORDERED that this case is dismissed.

      . An index of withheld documents detailing the justification for exemption claims is required under Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).

      . The use of coded indexes has been accepted generally by the courts. See, e.g., Scherer v. Kelly, 584 F.2d 170 (7th Cir.1978), cert. denied, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778 (1979); Burbar v. Department of Justice, 3 GDS ¶ 82,477 (D.D.C.1982); Agee v. Central Intelligence Agency, 517 F.Supp. 1335 (D.D.C.1980).