author: GERRY, District Judge.

text:
    Antoinette Connie ANELA and Angela DiPietro, Plaintiffs, v. CITY OF WILDWOOD, Harry Breslin, individually and as Chief of Police of the City of Wildwood, various unnamed police officers of the City of Wildwood, and William C. Mitchell and Anthony Robinson, individually and as police officers of the City of Wildwood, Defendants. Maureen McDONNELL, Lisa Tortis and Gina Bucceri, Plaintiffs, v. CITY OF WILDWOOD, Harry Breslin, individually and as Chief of Police of the City of Wildwood, various unnamed police officers of the City of Wildwood, and William C. Mitchell and Anthony Robinson, individually and as police officers of the City of Wildwood, Defendants. Roxann Cox COLE, Plaintiff, v. CITY OF WILDWOOD, Harry Breslin, individually and as Chief of Police of the City of Wildwood, various unnamed police officers of the City of Wildwood, and William C. Mitchell and Anthony Robinson, individually and as police officers of the City of Wildwood, Defendants.
    Civ. A. Nos. 83-1094, 83-2444 and 83-2525.
    United States District Court, D. New Jersey.
    Sept. 7, 1984.

      William S. Greenberg, James Schwerin, Greenberg, Kelley & Prior, Trenton, N.J., for plaintiffs.
    Gerard H. Hanson, Brener, Wallack & Hill, Princeton, N.J., for defendants, City of Wildwood, William C. Mitchell and Anthony Robinson.
    Marc L. Hurvitz, Horn, Kaplan, Goldberg & Gorny, Atlantic City, N.J., for defendant, Harry Breslin.
   OPINION

GERRY, District Judge.

This case involves six plaintiffs, all teenage girls, who, on the night of July 3, 1981, were arrested for violating a noise ordinance in Wildwood, New Jersey, and detained overnight. In the morning, they pleaded guilty, were fined and released. Named as defendants are: the City of Wildwood, its Chief of Police, and a couple of police officers. The defendants were charged in the complaint with a variety of constitutional violations (§ 1983), as well as a few pendent common law violations, pursuant to the New Jersey Tort Claims Act. There have been a couple of motions for summary judgment which have considerably thinned out the case. Presently before the court is the summary judgment motion of Harry Breslin, Chief of Police.

As to Chief Breslin, the only remaining live claims are a due process claim based on an allegedly unconstitutionally lengthy detention, and a state law claim for false imprisonment. In this court’s bench opinion of May 18, 1984, we stated:

These two claims ultimately come down to the same issue. The constitutional claim is addressed to the question of whether there are reasons justifying the holding of the plaintiffs overnight. The state claim also involves the reasonableness of continued incarceration. Neither claim depends on the (conceded) validity of the arrest itself — the issue for both claims is whether the defendants’ conduct after arrest was reasonable.

In his motion for summary judgment, Chief Breslin maintains that he is entitled to an immunity defense on both claims.

1. § 1983 claim.

Initially, the defendant seems to be making an argument that state law immunities arguably available to him under the New Jersey Tort Claims Act also immunize him on the § 1983 claim against him. This argument is plainly incorrect. Federal rights cannot be denied by the passage of state immunity law. See Mancini v. Lester, 630 F.2d 990, 994-95 (3d Cir.1980).

The defendant next argues that immunity law developed in the § 1983 context entitles him to a qualified immunity. This argument, the court believes, has some merit. The immunity standard for officials exercising discretionary functions has been set forth in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Harlow eliminated the “subjective” prong of the immunity defense but preserved the objective test of immunity. Harlow held that:

government officials ... are shielded from liability for civil damages insofar as their conduct does not violate clearly established constitutional rights of which a reasonable person would have known.

Id. at 818, 102 S.Ct. at 2738 (emphasis added). See also Czurlanis v. Albanese, 721 F.2d 98, 108 (3d Cir.1983).

The constitutional right in question here is the right that the period of detention following arrest and before the arrestee is brought before a magistrate (for the setting of bail) be “brief,” that is, no longer than is necessary for the taking of “administrative steps incident to arrest.” Fisher v. Washington Metro Transit Authority, 690 F.2d 1133 (4th Cir.1982). It is difficult to say that this constitutional right was clearly established at the time of the events in question. As stated by the Fisher court (supra):

Whether there are any direct constitutional limits on the post-arrest, pre-hearing detentions of arrested persons by state officers is a question that has not been much before the federal courts____ In a line of § 1983 cases the former Fifth Circuit has apparently accepted the view that there are no such constitutional limits ____ But other lower federal courts have simply assumed, though finding no violation on the facts at hand, that independently of any state law requirements there are ultimate durational limits derived from due process guarantees____ The Supreme Court has not addressed the issue directly.

Id. at 1139-40 (emphasis added). The Fisher court correctly points out that the closest the Supreme Court has come to addressing the issue is in the case of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1974). That ease dealt with the issue of whether “a person arrested and held for trial under a prosecutor’s information is constitutionally entitled to a judicial determination of probable cause for pretrial restraint of liberty.” Id. at 105, 95 S.Ct. at 858. In Gerstein, the court did state, in passing, that a policeman’s on-the-scene assessment of probable cause only justifies brief detention. Still, this was not the primary holding of the case and not a holding very clearly or thoroughly elaborated. The Third Circuit, too, has only tangentially discussed the right asserted here by plaintiffs. In Patzig v. O’Neil, 577 F.2d 841 (3d Cir.1978), the court implicitly assumed that some detentions might be unconstitutionally long, but it never clearly stated as much. (Indeed, the court cited approvingly district court cases holding that post-arrest, pre-arraignment detentions of 4-6 hours are reasonable, and even a case holding that an until-the-next morning detention, such as is presented here, is sufficiently prompt. See Daly v. Pederson, 278 F.Supp. 88, 95 (D.Minn.1967)). In sum, then, we are constrained to hold that the right to suffer only a “brief” post-arrest detention was not clearly established at the time of the events with which we are here concerned.

Moreover, even if we were to assume that the right was a clearly established one, we have difficulty concluding that this right was one the defendant Breslin should have known he was violating by holding the plaintiffs overnight. The right to a “brief” detention only is a right that defies precise definition. Necessarily, what is “brief” varies from case to case, depending on the local conditions of any given court system. See Fisher, supra. Quite plausibly, the holding of plaintiffs overnight for approximately 12 hours is still within the intendment of the word “brief.” Arguably, however, a 12 hour detention is not “brief.” But the point is that given the inherent quantitative uncertainty of the right in question, we cannot say that Chief Breslin should have known he was violating a constitutional right. At best, all we can say is that Breslin might have suspected he was violating a right. Harlow, however, speaks in terms of knowledge, not mere suspicion.

The plaintiffs argue that state court rules requiring officers to release arrestees after booking on minor offenses indicate that Breslin knew or should have known that he was violating plaintiffs’ rights. However, the rights conferred by state court rules are not constitutional in dimension and do not defeat a claim of § 1983 immunity. See Davis v. Scherer, — U.S. -, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) (qualified immunity not forfeited by failure to comply with clear state regulation).

Accordingly, for the above reasons, Breslin is entitled to summary judgment on the § 1983 claim against him.

2. False imprisonment claim.

Chief Breslin did not personally imprison the plaintiffs. If he can be chargeable for false imprisonment, the basis for liability would be his failure to discontinue existing policies arguably in contravention of New Jersey Court Rule 4:3-1(b). The defendant claims an immunity from suit on the basis of a provision of the New Jersey Tort Claims Act, N.J.S.A. 59:3-5, which reads:

A public employee is not liable for an injury caused by ... his failure to enforce any law.

Breslin argues that, at worst, he failed to enforce the New Jersey Court Rule, and that, if so, 59:3-5 confers upon him an absolute immunity. The plaintiffs contend that the relevant immunity section is N.J. S.A. 59:3-3, which reads:

A public employee is not liable if he acts in good faith in the ... enforcement of any law. Nothing in this section exonerates a public employee from liability for false arrest or false imprisonment.

This section only confers a good faith immunity (however New Jersey defines that term) and, in the case of false imprisonment, no immunity at all. The Superior Court has recently attempted to explicate the distinction between the sections. In Marley v. Borough of Palmyra, 193 N.J. Super. 271, 473 A.2d 554 (Law Div.1983), the.court stated that § 3-3 is applicable only where an act has occurred, and an act requires an external manifestation of will. On the other hand, § 3-5 is applicable where there has been an injury occasioned by inaction, or “no act,” and that section confers immunity even where the official has knowledge of the law. The plaintiffs state that Breslin’s continuation of existing policies should be considered an “act,” that § 3-3 applies, and that, under the second clause of the section (pertaining to false imprisonment), he is entitled to no immunity at all. However, the Marley court defines “act” much more narrowly and contemplates some sort of movement of the musculature. Id. at 297, 473 A.2d 554. Within such a definition, Breslin has not acted and has failed to enforce a law. Thus, § 3-5 applies, and Breslin is immune.

Accordingly, the defendant’s summary judgment motion shall be granted in its entirety.


source: Caselaw Access Project

author: GONZALEZ, District Judge.

license: Public Domain

text:
    Wilhelmena WEBBER, Plaintiff, v. Thomas J. MILLS, as Superintendent of the School of Palm Beach County, Florida; George H. Bailey, Susan R. Pell, Hugh MacMillan, Jr., Robert Howell, Louis J. Essa, Samuel Lovell, Paula Nesmith, as individuals and as members of the School Board of Palm Beach County, Florida; and their successors in office, Defendants.
    No. 82-8483-CIV.
    United States District Court, S.D. Florida, N.D.
    Sept. 10, 1984.

      William Holland, Holland & Smith, Gerald W. Pletan, Wiederhold, Moses & Bulfin, West Palm Beach, Fla., for plaintiff.
    Richard L. Oftedal, and Abbey G. Hairston, West Palm Beach, Fla., for defendants.
   ORDER OF DISMISSAL

GONZALEZ, District Judge.

IN THIS ACTION plaintiff WILHELMENA WEBBER, a black woman who served as principal of a public school in Palm Beach County, seeks injunctive and declaratory relief from defendant THE SCHOOL BOARD OF PALM BEACH COUNTY’S order discharging and terminating her contracts of employment. Plaintiff charges that the defendant School Board, its members and officers, violated her civil rights in taking this action. Defendants now move to dismiss plaintiff’s action on the basis of the doctrine of res judicata.

A review of the procedural history of this case is necessary. Plaintiff filed her complaint in November 1982. The court subsequently granted defendant’s motion to abate the federal proceedings pending the outcome of a state court appeal of the School Board’s decision upholding the suspension and termination. Defendants now have filed a motion for summary judgment (docket # 41), arguing that plaintiff’s case should be dismissed on the grounds of res judicata.

The general rule is that res judicata bars relitigation of those claims that have been conclusively decided in an earlier proceeding. As a corollary to the general rule, res judicata operates to bar litigation of matters that should have been raised in the prior proceeding. The prior judgment is conclusive not only with respect to every matter which was actually offered and received to sustain the demand or to make out a defense, but also as to every ground of recovery or defense which might have been presented. This application of 'the doctrine of res judicata operates to prevent the splitting of a single cause of action and the use of several grounds for recovery under the same action as the basis for separate suits. An unsuccessful party may not, therefore, frustrate the doctrine of res judicata by cloaking the same cause of action in the language of a theory of recovery untried in the previous litigation.

Plaintiff here asserts that she purposefully did not litigate the constitutional issues now pending before this court. The fact remains, however, that the plaintiff seeks to vindicate the same wrong in both the state and federal proceedings.

The United States Court of Appeals for the Eleventh Circuit and the Supreme Court of the United States have spoken on this subject in the recent past. In Migra v. Warren City School District Board of Education, — U.S. -, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984), and Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), the Court held that a state court judgment affirming agency or board action can be res judicata as to constitutional claims that were or should have been raised before the agency/board and on appeal to the state court. The state court judgment is the focus of our attention, and the full faith and credit principle embodied in section 1738 requires that the federal court bar relitigation of claims that were or should have been litigated in state court.

In Frazier v. East Baton Rouge Parish School Board, 363 F.2d 861 (5th Cir.1966), for example, the plaintiff was discharged from his post in the Louisiana school system and sought and received a full administrative hearing shortly thereafter. The hearing officer ruled adversely to plaintiff’s cause, and plaintiff’s appeal to the state court of appeals produced the same result. Subsequent to the adverse state appellate ruling, the plaintiff filed suit in federal district court, and for the first time alleged that the school board fired him because he was black in violation of section 1983. The Fifth Circuit dismissed the case on the basis of res judicata, reasoning that the plaintiff should have raised his constitutional/statutory claim before the state court. Observed the court:

[T]he decision of the state court of appeal, acting judicially, is a bar to Frazier’s claim in the federal district court even though he raises his federal claim of discrimination for the first time in the federal court. In these circumstances, once Frazier submitted his challenge to state administrative action to state judicial review, the only appropriate federal forum for review of his alleged federal claim of discrimination was the United States Supreme Corut.

363 F.2d at 862; see also Jennings v. Caddo Parish School Board, 531 F.2d 1331 (5th Cir.1976) (per curiam).

In Burney v. Polk Community College, 728 F.2d 1374 (11th Cir.1984), the Eleventh Circuit adopted the reasoning of Frazier, Jennings, Migra and Kremer. Burney is factually different from the case at bar in that there, the plaintiff raised his claim of discrimination before the school board. The hearing officer ruled adversely to plaintiff’s interest, and the state appellate court affirmed the Board’s decision upholding plaintiff’s discharge. Plaintiff subsequently filed a Title VII and section 1983 action in federal district court, which the Eleventh Circuit dismissed on the grounds of res judicata. Admittedly, Burney is an easier case to analyze because plaintiff there did raise his constitutional argument before the first administrative forum. Still, the decision is important because it sets forth, by way of adoption of prior appellate and Supreme Court rulings, the elements necessary for a federal court to give full faith and credit to a state court decision upholding a state administrative agency’s rejection of an employment discrimination claim: (1) the court of the state from which the judgment emerged would grant preclusive effect to the judgment; and (2) the state proceedings, including the administrative action and judicial review of this action, do not violate the procedural requirements of the fourteenth amendment’s Due Process Clause. 728 F.2d at 1378.

As to the first element, Johnson v. School Board of Palm Beach County, Florida, 403 So.2d 520 (Fla. 1st DCA 1981), represents a case in which a state court upheld the findings of a state administrative hearing. Moreover, the Eleventh Circuit in Burney expressly rejected plaintiff’s contention that a Florida court would not grant preclusive effect to a state appellate court’s affirmance of a school board’s order. 728 F.2d at 1378, 1381-82. As to the second element, the Board’s proceedings have been expressly found to pass constitutional muster in Webber v. School Board of Palm Beach County, Florida, 444 So.2d 70 (Fla. 4th DCA 1984), the very decision which, on balance, precludes plaintiff from continuing to litigate her claim in this federal forum.

Based on the foregoing, defendants’ motion for summary judgment be and the same is hereby GRANTED, and this case stands DISMISSED.


text:
    In re INSPECTION OF NORFOLK DREDGING CO. and the Dredge “Jeckell”.
    No. 84-4197-CIV.
    United States District Court, S.D. Florida, N.D.
    Sept. 10, 1984.
    Fitzgerald & Taylor, Fort Lauderdale, Fla., for Norfolk Dredging Co.
    Donald McCoy, Fort Lauderdale, Fla., for OSHA.
   ORDER

GONZALEZ, District Judge.

THIS CAUSE has come before the court upon appeal of the Honorable Patricia Kyle’s decision denying the motion of the Norfolk Dredging Company (“Norfolk”) and the dredge “Jeckell” to quash the administrative search warrant issued to the Occupational Safety and Health Administration (“OSHA”). The sole issue before the court is whether section 4(b)(1) of the Occupational Safety and Health Act, 29 U.S.C.A. § 653(b)(1) (1975), precludes an OSHA inspection because the United States Coast Guard has jurisdiction over safety aboard “uninspected” vessels.

The facts giving rise to this case are relatively simple. On April 30, 1984, an employee of Norfolk was fatally injured when the boom of the crane he was operating fell and struck him. The employee and the crane were on the same “uninspected” dredge in navigable waters within the State of Florida. Shortly after the accident, another employee of Norfolk filed a complaint with OSHA charging the company with providing unsafe working conditions aboard the dredge. When officers of OSHA attempted to inspect the dredge, representatives of Norfolk denied them entry. OSHA applied to Magistrate Kyle for an administrative inspection warrant authorizing an examination of the barge. The Magistrate signed the warrant and Norfolk moved to quash it. The Magistrate denied that motion prompting this appeal.

OSHA seeks affirmance of the Magistrate’s decision principally on the basis of the Second Circuit’s ruling in Donovan v. Red Star Marine Services, Inc., 739 F.2d 774 (2d Cir.1984). In Red Star, OSHA suspected that the tugboat failed to provide protection against excessive noise levels. When inspectors attempted to board the vessel, representatives of the Red Star denied them entry and contested OSHA’s authority to conduct the investigation. The OSH Commission held, inter alia, that OSHA did not have jurisdiction over the working conditions of “seamen” aboard uninspected vessels. The Second Circuit reversed in part and remanded the case, ruling that section 4(b)(1) of OSH Act did not preclude OSHA from exercising jurisdiction over “uninspected” vessels.

Upon examination of the Red Star decision, it is clear that the court ruled as it did because the tugboat was an “uninspected” vessel. One passage in the decision is illustrative of the point.

[I]t cannot be questioned that there is a significant distinction between “uninspected” vessels and “inspected and certificated” vessels, in that the regulations affecting “inspected and certificated” vessels are more numerous, extensive, and pervasive than those affecting “uninspected” vessels.
Although not in issue, the Secretary concedes that the pervasive regulations by the Coast Guard of safety and health aboard inspected vessels eliminates or excludes OSHA’s jurisdiction over those vessels.

Red Star, at 777-778.

There were other reasons for the Second Circuit’s decision. The court found that Congress historically has limited the Coast Guard’s authority to regulate uninspected vessels to life-saving and fire-fighting matters. The court also was of the opinion that section 4(b)(1) limits OSHA’s jurisdiction only when a sister federal agency actually is exercising authority in the same area, and the Coast Guard does not exercise this type of authority over uninspected vessels. For all of these reasons, the court of appeals instructed the OSH Commission to permit OSHA agents to inspect the tugboat.

This court respectfully reaches a different result largely because the Eleventh Circuit and the former Fifth Circuit have decided otherwise while expressly rejecting the arguments cited by the Second Circuit in support of its decision.

The starting point for our analysis is Donovan v. Texaco, Inc., 720 F.2d 825 (5th Cir.1983). The Donovan court had to decide whether OSHA’s prohibition against the retaliatory discharge of an employee applies to a Texaco employee who had complained to the Coast Guard about certain generating equipment aboard a vessel in navigable waters and, as a result, was demoted. The district court ruled that OSHA lacked jurisdiction to sue Texaco on the employee’s behalf, and the appellate court affirmed.

In view of the Red Star court’s reliance on the “uninspected” status of the vessel in reaching its decision, it would appear that the most significant aspect of Donovan is that court’s refusal to draw a legal distinction between “inspected” and “uninspected” vessels for purposes of defining the scope of OSHA’s jurisdiction. After quoting from the OSHA-Coast Guard memorandum agreement (cited at 48 Fed.Reg. No. 53, Mar. 17, 1983, and referred to in part herein, supra p. 2-3), the Donovan court clearly and unequivocally refused to give it any legal significance. The court’s comments are worth repeating.

We commend the effort ... of the agencies to arrive at an ad interim mode of composing their conflicting assertions of authority. Since, for our Circuit, these are today resolved ... we attach little significance to the agencies’ earlier estimations of the relative strength of their positions to be debated before us. It is not for modalities of the federal power to trade functions between themselves in perpetuity by agreement; the will of Congress must control. The basis of their compromise vanishes also. For our Circuit, on this point, the agreement is no more.

720 F.2d at 827-28 n. 3.

A careful reading of Donovan makes clear that the Eleventh Circuit is more concerned with the general industry-wide exemption for seamen serving on vessels operating on navigable waters created by section 4(b)(1) than it is with the legal status of the vessel itself. Section 4(b)(1) states that OSHA regulations do not apply to the “working conditions of employees” whose well-being is monitored by other federal agencies. The Donovan court found that the Coast Guard’s “comprehensive regulation and supervision of seamen’s conditions” aboard vessels operating in navigable waters were sufficiently “general and pervasive as to displace OSHA coverage of it entirely____” Id. at 826 & n. 1 (relying on Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 (5th Cir.1976), and Secretary of Labor v. Dillingham Tug and Barge Corp., 10 B.N.A. OSHC 1859 (1982)). This finding is particularly important because the Coast Guard regulations in Donovan lacked a specific prohibition against retaliatory discharges, and the Eleventh Circuit easily could have limited the Coast Guard’s jurisdiction because of the disparity in the specificity of its regulations vis-a-vis those of OSHA on the subject. But it did not chiefly because the court considered the right to complain about job hazards without fear of retaliation to be a condition of work which the Coast Guard regulates generally, though it may not have promulgated a specific prohibition against such employer actions. The Fifth Circuit’s decision in Clary v. Ocean Drilling and Exploration Co., 609 F.2d 1120 (5th Cir.1980), holding that OSHA regulations do not apply to the working conditions of seamen on vessels in navigation, is consistent with the result in Donovan.

The Donovan court also circumscribed OSHA’s jurisdiction because the Coast Guard was seen as the agency most capable of appreciating and thus capable of regulating the “unique” working and living conditions of seamen. The court examined a host of Coast Guard regulations and found that many “afford[ed] protections paralleling, in some degree, that accorded complaining landside workers by the [retaliatory discharge] provisions of Section 11(c) of OSHA.” 720 F.2d at 828. The court reasoned that

to impose on this ancient and delicately balanced scheme, long predating OSHA and crafted to conform to the special conditions of seamen’s complaints about shipboard working conditions, the parallel but divergent protective plan of 11(c) would be precisely the sort of duplication that the Congress meant to forbid by enacting Section 4(b)(1) of OSHA.

Additionally, the Eleventh Circuit found that OSHA’s regulations do not apply to vessels on navigable waters except those on Outer Continental Shelf Lands. 720 F.2d at 829.

The Donovan decision stands as a beacon directing this court to the proper result. Rather than focus on the “uninspected” status of the vessel, as did the Second Circuit in Red Star, Donovan counsels us to examine the Coast Guard’s regulations to determine if they are sufficiently extensive to cover the situation presented by the death of a Norfolk employee. The Coast Guard’s regulations need not cover the field with particularity, for if the general regulations governing employee discharge addressed in Donovan were legally adequate, then similarly generalized rules will do here, too. This is especially true where, as here, the matter is one that traditionally falls within the Coast Guard’s jurisdiction.

A review of the statutes governing Coast Guard activities reveals several provisions that provide for Coast Guard jurisdiction over safety and working conditions aboard vessels. Section 653 of Title 46 of the United States Code entitles a crew member to complain about the seaworthiness of his vessel; section 658 addresses the discharge of the crew if the vessel is unseaworthy; and sections 660a and 660b discuss the Coast Guard’s authority to inspect the crew quarters of rigged and unrigged vessels, respectively.

The federal regulations also are dotted with sections detailing the Coast Guard’s jurisdiction over boating safety. For example, the Coast Guard oversees equipment safety on vessels, 33 C.R.F. §§ 175.1-.140, 183.1-.715 (1983); it has the authority to investigate accidents aboard ship, 46 C.F.R. §§ 4.01-.40 (1983); and there exists a fairly detailed set of regulations setting forth the Coast Guard’s responsibilities for the safety of working conditions aboard uninspected vessels, 46 C.F.R. §§ 24, 25, & 26 (1983).

Based on the existing statutory and regulatory provisions governing Coast Guard activity, the court finds that the Coast Guard does have jurisdiction over the accident aboard the Norfolk, and thus OSHA cannot commence an investigation that is duplicative and effectively ousts the Coast Guard of its authority over the incident. This conclusion finds further support in the secondary and tertiary rationales of the Donovan court (explained above), whose reasoning and conclusion distinguishes this case from the Red Star decision.

Accordingly, the decision of the Magistrate denying Norfolk’s motion to quash OSHA’s administrative inspection warrant is REVERSED, and this case is REMANDED to the Magistrate’s Court for a result consistent with this opinion.

       In accordance with a “Memorandum of Understanding” signed by the Commandant of the Coast Guard and the Assistant Secretary for [OSHA], the Secretary has taken the position that "the Coast Guard has issued comprehensive standards and regulations concerning the working conditions of seamen aboard inspected vessels," and that OSHA may not enforce its regulations with respect to "seamen" aboard inspected vessels.


author: O’CONNOR, Chief Judge.

text:
    Cindy S. SCOTT, Plaintiff, v. The CITY OF OVERLAND PARK, et al., Defendants.
    Civ. A. No. 83-2219.
    United States District Court, D. Kansas.
    Sept. 11, 1984.

      Arthur E. Palmer, Harold S. Youngentob, Les E. Diehl of the firm of Goodell, Stratton, Edmonds, Palmer & Wright, Topeka, Kan., for plaintiff.
    Donald C. Ramsay, Mark D. Hinderks of the firm of Weeks, Thomas & Lysaught, Kansas City, Kan., Phillip L. Harris, Neil R. Shortlidge, Overland Park, Kan., for defendant City of Overland Park.
    Jack W.R. Headley, Karen M. Iverson of the firm of Lathrop, Koontz, Righter, Clagett & Norquist, Kansas City, Mo., Michael Norris of the firm of Lathrop, Koontz, Righter, Claggett & Norquist, Overland Park, Kan., Robert A. DeCoursey, Kansas City, Kan., for defendant Donald E. Pipes.
    Mary Cracraft, John J. Yates of the firm of Gage & Tucker, Kansas City, Mo., Stephen A. Murphy, Phil M. Cartmell, Jr., R. Scott Beeler of the firm of Gage & Tucker, Overland Park, Kan., for defendant Myron Scafe.
   MEMORANDUM AND ORDER

O’CONNOR, Chief Judge.

This matter is before the court on defendant Pipes’ motion for summary judgment; defendants City of Overland Park, Pipes, and Scafe’s motion for summary judgment; defendant Scafe’s motion to dismiss the Title VII claim; defendants’ motion to dismiss claims barred by the statute of limitations; and defendants’ motion to dismiss plaintiff’s claims of retaliation under Title VII.

Plaintiff is a police officer with the Overland Park Police Department. She has sued the City of Overland Park, Chief of Police Myron Scafe, and City Manager Donald E. Pipes for sex discrimination pursuant to 42 U.S.C. § 2000e et seq. and 42 U.S.C. §§ 1983 and 1985(3). She alleges that she has been sexually harassed, denied promotion and training, and retaliated against for filing an EEOC charge and this lawsuit.

Summary judgment may be granted when the court is satisfied that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ped.R.Civ.P. 56. Pleadings and documentary evidence are to be construed liberally in favor of the party opposing summary judgment. Harman v. Diversified Medical Investments Corp., 488 F.2d 111 (10th Cir.1973), cert. denied, 425 U.S. 951, 96 S.Ct. 1727, 48 L.Ed.2d 195 (1976). The movant must demonstrate beyond a reasonable doubt that he is entitled to summary judgment. Madison v. Deseret Livestock Co., 574 F.2d 1027 (10th Cir.1978); Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 516 F.2d 33 (10th Cir.1975).

When considering a motion to dismiss, the factual allegations of the complaint must be taken as true, and all reasonable inferences must be indulged in favor of plaintiff. Mitchell v. King, 537 F.2d 385 (10th Cir.1976); Dewell v. Lawson, 489 F.2d 877 (10th Cir.1974). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Kennedy v. Meacham, 540 F.2d 1057 (10th Cir.1976); Jorgensen v. Meade Johnson Laboratories, Inc., 483 F.2d 237 (10th Cir.1973).

Defendant Pipes has moved for summary judgment on the basis that he has qualified good faith immunity and that he is not subject to suit on plaintiff’s Title VII claim because he was not named in the charge. Defendant Pipes filed an affidavit in connection with his motion for summary judgment. Subsequently, he filed a motion for leave to file a corrected affidavit, along with the corrected affidavit. The motion for leave to file corrected affidavit is granted.

Defendant Pipes is the city manager of Overland Park, and in that capacity he has the ultimate authority for promotions in the police department. The City of Overland Park has an elaborate promotion procedure in which eligible candidates are given both a written and a psychological examination. The Civil Service Commission also rates the candidates’ personnel files and conducts an interview. The candidates participate in an assessment center in which their behavior is analyzed, and they are given a score on this procedure. The Civil Service Commission rates the candidates at the end of this process, and gives final scores and ratings to the city manager. The chief of police also makes his recommendations to the city manager. The city manager conducts interviews of the candidates and, on the basis of all of this information, makes the final selections for promotion. Defendant Pipes claims that he acted in good faith in that he neither created the promotion process nor designed or administered the examinations.

Pipes’ position is that he was “isolated from every phase of the promotion process until he received and acted upon the ranked list of final candidates.” We are not persuaded by this argument. As city manager, defendant Pipes had the final authority to make promotions and, in fact, interviewed the candidates. He cannot insulate himself from liability merely by not participating in the examination process. He personally participated in the promotions. He interviewed the candidates and made his determination based not only on the Civil Service Commission rankings, but also on his subjective evaluation.

Defendant Pipes is not entitled to qualified immunity in this action. In the case of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court established the standard for qualified good faith immunity:

We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id. at 818, 102 S.Ct. at 2738.

Plaintiff has alleged causes of action against defendant Pipes pursuant to Title VII and 42 U.S.C. § 1983. Her Title VII claim is that she was discriminated against on the basis of her sex. Her § 1983 claim is that the defendants violated her constitutional rights under color of state law, specifically that they violated the Equal Protection Clause of the Fourteenth Amendment. The law regarding sex discrimination is clearly established. Furthermore, defendant Pipes, in his position as city manager and as the person who is in charge of administering the city’s affirmative action plan, is in a position to know what the requirements of the law are in this area.

Defendant Pipes cites Davis v. Scherer, — U.S. -, 104 S.Ct. 3012, 82 L.Ed.2d 139, for the proposition that he had reasonable grounds for not knowing that his actions violated clearly established standards of conduct in relation to plaintiff. In Davis, the plaintiff had allegedly been deprived of due process in connection with his termination from the police department. The Court found that although plaintiff clearly had a right to due process, the kind of hearing required to provide him due process was not clearly established. The situation here is vastly different. Plaintiff alleges that she was not promoted because of her sex. “The right to be free of invidious discrimination on the basis of sex certainly is clearly established, and no one who does not know about it can be called ‘reasonable’ in contemplation of law.” Goodwin v. Circuit Court of St. Louis County, Missouri, 729 F.2d 541, 546 (8th Cir.1984). See also Williams v. City of Montgomery, 742 F.2d 586, 589 n. 4 (11th Cir.1984).

Defendant Pipes is, however, entitled to summary judgment on plaintiff’s claims of sexual harassment and retaliation. Pipes has presented evidence that he did not personally participate in, or have any knowledge of, any sexual harassment of plaintiff or any attempts at retaliation against her. Plaintiff has presented no evidence to the contrary. She cannot rest on bare allegations of pleadings and survive summary judgment. Therefore, Pipes is entitled to summary judgment on plaintiff’s claims of sexual harassment and retaliation under 42 U.S.C. § 1983 and Title VII.

Defendant Pipes also claims that plaintiff can have no cause of action against him under Title VII because she did not name him in her charge. In Romero v. Union Pacific Railroad, 615 F.2d 1303 (10th Cir.1980), the Tenth Circuit established factors to be evaluated in determining whether or not a party should be dismissed for failure to name him in the administrative charge. These factors are:

(1) Whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint;
(2) whether, under the circumstances, the interests of a named party are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings;
(3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party;
(4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.

Id. at 1311-12.

The administrative charge “must be liberally construed in order to accomplish the purposes of the Act, since such complaints are written by laymen not versed either in the technicalities of pleading or the jurisdictional requirements of the Act.” Id. at 1311. In examining these factors we note that the role of Pipes as city manager could have been ascertained by the complainant at the time of the filing of the EEOC complaint, inasmuch as he actually interviewed the complainant for the promotion. Therefore, this factor weighs in favor of the defendant. However, the second and third factors weigh in favor of the plaintiff in that the city manager’s interests are similar to those of the city and we cannot say that he was actually prejudiced in not being named in the charge. He had knowledge of the EEOC proceedings. Furthermore, to one untrained in the technicalities of the law, it was reasonable for the plaintiff to assume that the city manager’s relationship with her was through the City of Overland Park. Therefore, defendant Pipes is not entitled to dismissal on plaintiff’s Title VII claim.

Defendant Scafe has also moved to dismiss plaintiff’s Title VII claims against him for failure to name him in the charge. A copy of the charge filed with the KCCR was attached to the motion. We considered this material in ruling on the motion, and therefore, gave notice to the parties that the motion would be considered as a motion for summary judgment. We must again analyze the Romero factors as to defendant Scafe. With regard to the first factor, it is unclear whether plaintiff could ascertain the extent of Scafe’s role in the promotion process at the time of filing her charge. She had gone through the promotion procedures three times. Moreover, she alleges that she did not have an interview with Scafe in each of the three processes and that she did not know that Scafe recommended to the City Manager who was to be promoted. With respect to the second factor, we do not agree with the defendant’s position that his interests are. dissimilar from those of the city because he has been sued for punitive damages and the city has not. Scafe has only been sued for punitive damages under plaintiff’s §§ 1983 and 1985 claims. That has nothing to do with the Title VII claim. As to the third factor, we do not believe Scafe was prejudiced in any way by not being named in the charge. He was contacted by the KCCR and participated in the investigation. Furthermore, plaintiff named “The City of Overland Park Police Department and its representatives” in the charge. Scafe certainly should have been aware that he was a “representative” of the police department. Finally, we believe it is logical for plaintiff to assume that Scafe’s relationship as to her was through the police department. Therefore, defendant Scafe’s motion to dismiss the Title VII action should be denied.

Defendants City, Pipes, and Scafe have moved to dismiss plaintiff’s complaint to the extent that her claims are outside the applicable statute of limitations. Defendants argue that charges under Title VII must be filed within 180 days of the discriminatory act. Their position is that the charge was filed on August 31, 1982, and therefore, the charge was timely only as to events occurring on or after March 5, 1982. However, in Mohasco Corp. v. Silver, 447 U.S. 807, 814 n. 16, 100 S.Ct. 2486, 2491 n. 16, 65 L.Ed.2d 532 (1980), the Supreme Court held that a complainant “need only file his charge within 240 days of the alleged discriminatory employment practice to insure that his federal rights will be preserved” in a deferral state. See also Smith v. Oral Roberts Evangelistic Assoc., 731 F.2d 684, 687 (10th Cir.1984).

Defendants further argue that any of plaintiff’s claims arising prior to June 16, 1981, are barred by K.S.A. 60-513(a)(4). Garcia v. Wilson, 731 F.2d 640 (10th Cir. 1984) (en banc), established a uniform statute of limitations for civil rights actions pursuant to 42 U.S.C. § 1983. The court held that all such actions are to be construed as injuries to personal rights. The appropriate statute of limitation in Kansas is K.S.A. 60 — 513(a)(4). The instant case was filed, however, before the Garcia decision. The Tenth Circuit, in EEOC v. Gaddis, 733 F.2d 1373 (10th Cir.1984), and Jackson v. City of Bloomfield, 731 F.2d 652 (10th Cir.1984), analyzed the factors set out in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), and determined that the Garcia decision should not be applied retroactively. We believe that an analysis of the Chevron factors in this case leads to the same result. Therefore, the appropriate statute of limitations in this case is three years.

The plaintiff argues that regardless of the limitations period, none of her claims are time barred, because she has alleged continuing violations. A continuing violation is:

based on a showing that an employer continues to implement an illegal system or policy, ... that came into being prior to the limitations period. If employment decisions made under that policy result in constitutional violations within the limitations period, a continuing violation may be shown. A suit challenging a systematic policy is not barred even though the policy began before the limitations period, because the policy itself continues to violate employees’ rights.
Pike v. City of Mission, 731 F.2d 655, 660 (10th Cir.1984).

The Tenth Circuit has held that “failure to promote” cases are generally continuing in nature. Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir.1975). Furthermore, plaintiff’s claims of sexual harassment, failure to train, and retaliation are all alleged to be continuing. We agree that plaintiff has sufficiently stated claims for continuing violations. However, we do not agree that plaintiff can be compensated on all her claims. Even though her charge was timely filed as to all continuing violations, Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 759-61 (9th Cir.1980); Rich v. Martin Marietta Corp., supra, Title VII limits backpay recovery to two years prior to the date of filing the charge. 42 U.S.C. § 2000e-5(g). Similarly, even though the complaint was timely filed on the § 1983 claims, the plaintiff is limited to recovery of damages within the statute of limitations period of three years in this case. See Hansbury v. Regents of University of California, 596 F.2d 944, 949-50 (10th Cir. 1979). Contra Chung v. Pomona Valley Community Hospital, 667 F.2d 788 (9th Cir.1982).

Plaintiff has cited Boyd v. Shawnee Mission Public Schools, No. 78-2080 (D.Kan., unpublished, 9/23/81), in support of the proposition that if a continuing violation is shown, all prior acts are considered timely. In light of the Tenth Circuit authority on this point, we disapprove Boyd to the extent it conflicts with this decision.

It follows that defendants’ motion to dismiss will be granted to the extent that plaintiff’s claims fall outside the applicable limitations periods. We note that although this is a motion to dismiss, the defendants did attach deposition testimony and answers to interrogatories to their reply. This material was not necessary to our determination and was not considered in ruling on this motion, therefore, it was not necessary that the motion be converted to a motion for summary judgment.

The defendants have moved to dismiss the plaintiff’s claims of retaliation under Title VII. In her complaint, plaintiff alleged that she was not promoted and was denied training because of her sex and in retaliation for contacting the EEOC in 1973. In her amended complaint, plaintiff also alleged that defendants made attempts to transfer her from the Detective Division and gave her assignments that were meant to reflect negatively on her work performance in retaliation for filing her 1982 charge and this lawsuit.

With respect to the claims of retaliation for filing the 1982 charge, the judges in this district have held that an additional charge is not required. Coleman v. O’Brien, No. 80-4238 (D.Kan., unpublished, 5/23/84); Ross v. Kansas Commission on Civil Rights, No. 81-4132 (D.Kan., unpublished, 12/20/82).

As pointed out by the defendants in their motion, Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir.1970), is the leading ease on the scope of the charge.

Allegations in a judicial complaint filed pursuant to Title VII “may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegation during the pendency of the case before the Commission____” In other words, the “scope” of the judicial complaint is limited to the “scope” of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. Id. at 466 [quoting King v. Georgia Power Co., 295 F.Supp. 943, 947 (N.D.Ga. 1968)].

Plaintiff’s claim of failure to promote is expressly contained in the 1982 charge. Although she does not mention the word “retaliation” in her charge, we do not find this to be a fatal flaw. EEOC charges are prepared by those unschooled in the technicalities of the law. In a like manner she does not expressly mention failure to train in the charge. However, it is clear that the claim that she was denied training is bound up with the denial of promotion claims. In her complaint plaintiff alleges that she was not provided training in order “to deny the plaintiff a deserved promotion to the position of sergeant.” Clearly, the fact that plaintiff was unable to obtain a promotion because she was denied the appropriate training is within the scope of her 1982 charge. Therefore, defendants’ motion to dismiss plaintiff’s claims of retaliation will be denied.

Defendants have moved to dismiss plaintiff’s claim under 42 U.S.C. § 1985(3). The general rule is that agents of a corporation constitute a single legal entity and therefore cannot conspire for purposes of § 1985(3). Dombrowski v. Dowling, 459 F.2d 190 (7th Cir.1972). This rule has also been applied to government agents and employees acting in their official capacities. See Buntin v. Board of Trustees of Va. Supplemental Retirement System, 548 F.Supp. 657, 660 (W.D.Va. 1982); Zentgraf v. Texas A & M University, 492 F.Supp. 265, 272-73 (S.D.Tex.1980); Johnson v. Brelje, 482 F.Supp. 125, 130 (N.D.Ill.1979). See also Tate v. Alexander, 527 F.Supp. 796, 807 n. 12 (M.D.Tenn.1981), modified sub nom. Alexander v. Alexander, 706 F.2d 751 (6th Cir.1983). Plaintiff has cited a line of cases which have distinguished Dombrowski in situations in which the defendants are not accused of a single act of discrimination, but rather a series of discriminatory acts. See Novotny v. Great American Savings & Loan Ass’n, 584 F.2d 1235 (3d Cir.1978), vacated on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979); Craft v. Board of Trustees, 516 F.Supp. 1317, 1324 (N.D.Ill. 1981); Rivas v. State Board for Community Colleges, 517 F.Supp. 467, 471-72 (D.Colo.1981); Stathos v. Bowden, 514 F.Supp. 1288, 1291-93 (D.Mass.1981), modified, 728 F.2d 15 (1st Cir.1984); An-Ti Chai v. Michigan Technological University, 493 F.Supp. 1137, 1166-67 (W.D.Mich. 1980). In Rivas v. State Board for Community Colleges, supra, the court stated: “Precedent on this point is mixed and the Tenth Circuit has not made a definitive statement. The common thread, however, through the various decisions is apparent: a conspiracy does not exist among a business entity and its employees where the employees act within the scope of their employment without inconsistent personal motivations.” Id. at 472. The Rivas court found that Rackin v. University of Pennsylvania, supra, and Jackson v. University of Pittsburgh, supra, stood for the “proposition that allegations of continual harassment at the hands of individual employees are sufficient to survive dismissal because, in the backdrop of ... discrimination, such allegations express the likelihood that the employees were motivated by a personal ... bias and were not acting out of concern for the best interests of their employer.” Rivas, 517 F.Supp. at 472. Plaintiff has sued Pipes and Scafe in both their official and individual capacities. She has also alleged continuing discrimination which would tend to infer that defendants Pipes and Scafe were motivated by a personal bias. Therefore, to the extent that they are sued in their individual capacities, plaintiff has stated a claim under § 1985(3). See Edmonds v. Dillin, 485 F.Supp. 722, 729 (N.D.Ohio 1980); Cole v. University of Hartford, 391 F.Supp. 888, 892 (D.Conn. 1975). However, to the extent it is alleged that they acted in their official capacities, the rule of Dombrowski, supra, applies and plaintiff has not stated a claim under § 1985(3).

Defendants also argue that § 1985(3) does not provide a remedy to redress violations of Title VII, citing Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). Defendants’ reliance on Novotny is misplaced. Novotny holds that a complainant cannot assert rights created solely through Title VII under § 1985(3), but the Court pointed out that its ruling had no effect when a right “independent” of Title VII is sought to be redressed by § 1985(3). Id. at 376-78, 99 S.Ct. at 2351-2352. Plaintiff has also alleged that her Fourteenth Amendment rights to equal protection have been violated. This right existed prior to the passage of Title VII. Therefore, Novotny is not persuasive in the case at hand. Owens v. Rush, 654 F.2d 1370 (10th Cir.1981).

We are also not persuaded by defendants’ argument that § 1985(3) does not apply to sex discrimination. In Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971), the Court stated that “there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” The Griffin Court, however, did not consider whether a class other than race would be sufficient under § 1985(3). The defendants cite United Brotherhood of Carpenters v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), for the proposition that sex is not a sufficient class under § 1985(3). The Scott Court held that § 1985(3) does not reach conspiracies motivated by economic or commercial animus. The district court and' the Court of Appeals for the Fifth Circuit had held that invidiously discriminatory intent other than racial bias would be actionable under § 1985(3). Scott v. Moore, 461 F.Supp. 224, 229 (E.D.Tex.1978), aff'd in relevant part, 680 F.2d 979, 991 (5th Cir.1982). Although the majority in Scott did not reach the question, four dissenting justices stated:

Congress intended to provide a remedy to any class of persons, whose beliefs or associations placed them in danger of not receiving equal protection of the laws from local authorities. While certain class traits, such as race, religion, sex, and national origin, per se meet this requirement, other traits also may implicate the functional concerns in particular situations.
Id. at 3368 (Blackmun, J., dissenting, joined by Brennan, Marshall, O’Connor, JJ.).

In interpreting the Scott decision, the Tenth Circuit has stated by way of dicta:

In summary as to the Scott opinion, we find nothing therein to give any encouragement whatever to extend § 1985 to classes other than those involved in the strife in the South in 1871 with which Congress was then concerned. In fact from Scott we get a signal that the classes covered by § 1985 should not be extended beyond those already expressly provided by the Court.
Wilhelm v. Continental Title Co., 720 F.2d 1173 (10th Cir.1983).

Defendants rely heavily on the above language in Wilhelm, but that case dealt with discrimination on the basis of membership in a class of handicapped persons. Neither Scott nor Wilhelm had anything to do with sex as a class.

Prior to the Scott decision, the majority of courts that had addressed the issue held that sex was a sufficient class for § 1985(3) purposes. See C & K Coal Co. v. United Mine Workers of America, 704 F.2d 690, 700 (3d Cir.1983); Padway v. Palches, 665 F.2d 965, 969 (9th Cir.1982); Shortbull v. Looking Elk, 677 F.2d 645, 648 (8th Cir. 1982), cert. denied, 459 U.S. 907, 103 S.Ct. 211, 74 L.Ed.2d 168 (1982); Life Insurance Co. of North America v. Reichardt, 591 F.2d 499, 505 (9th Cir.1979); Carchman v. Korman Corp., 594 F.2d 354, 356 (3d Cir.), cert. denied, 444 U.S. 898,100 S.Ct. 205, 62 L.Ed.2d 133 (1979); Novotny v. Great American Federal Savings & Loan Association, 584 F.2d 1235, 1243 (3d Cir.1978) (en banc), rev’d on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979); Conroy v. Conroy, 575 F.2d 175, 177 (8th Cir.1978); Meiners v. Moriarity, 563 F.2d 343, 348 (7th Cir.1977) (dicta); Murphy v. Mt. Carmel High School, 543 F.2d 1189, 1192 n. 1 (7th Cir.1976) (dicta); Askew v. Bloemaker, 548 F.2d 673, 678 (7th Cir. 1976) (dicta); Johnson v. City of Cincinnati, 450 F.2d 796 (6th Cir.1971); Hodgin v. Jefferson, 447 F.Supp. 804, 808 (D.Md. 1978); Curran v. Portland Superintending School Committee, 435 F.Supp. 1063, 1084-86 (D.Maine 1977). It is unclear to what extent these cases have been called into question as a result of the decision in Scott.

Subsequent to Scott, several courts have held that sex is a sufficient class. Stathos v. Bowden, 728 F.2d 15 (1st Cir.1984); Skadegaard v. Farrell, 578 F.Supp. 1209 (D.N.J.1984); Hauptmann v. Wilentz, 570 F.Supp. 351, 385-86 (D.N.J. 1983) (dicta); Miami International Realty Co. v. Town of Mt. Crested Butte, 579 F.Supp. 68, 76 (D.Colo.1984) (dicta); Eggle ston v. Prince Edward Volunteer Rescue Squad, 569 F.Supp. 1344, 1352 (E.D.Va. 1983) (dicta). In light of the fact that the Supreme Court left the question open, we believe these later cases are persuasive and hold that sex is a sufficient class for purposes of § 1985(3).

We cannot accept defendants’ argument that plaintiff has not pleaded a conspiracy with sufficient specificity. Griffin v. Brecleenridge, 403 U.S. 88 (1971), established the test to determine when a complaint has stated a cause of action pursuant to § 1985(3):

To come within the legislation a complaint must allege that the defendants did (1) “conspire or go in disguise on the highway or on the premises of another” (2) “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” It must then assert that one or more of the conspirators (3) did, or caused to be done, “any act in furtherance of the object of [the] conspiracy,” whereby another was (4a) “injured in his person or property” or (4b) “deprived of having and exercising any right or privilege of a citizen of the United States.”

403 U.S. at 102-03, 91 S.Ct. at 1798-1799. Plaintiff has sufficiently alleged a conspiracy under these standards.

Finally, defendants seek dismissal of plaintiff’s § 1983 claims on the ground that the statute does not provide a cause of action for sex discrimination. This statute clearly provides relief when the defendants, acting under color of state law, deprive the plaintiff of her constitutional rights. Among those rights is the right to be free of sexbased discrimination. See Harless v. Duck, 619 F.2d 611 (6th Cir.), cert. denied, 449 U.S. 872, 101 S.Ct. 212, 66 L.Ed.2d 92 (1980); Eslinger v. Thomas, 476 F.2d 225 (4th Cir.1973); Johnson v. Cincinnati, 450 F.2d 796 (6th Cir.1971).

In summary, defendant Pipes’ motion for summary judgment is granted as to plaintiff’s claims of sexual harassment and retaliation, and is denied in all other respects. Defendant Scafe’s motion to dismiss the Title VII action is denied. Defendants City, Pipes, and Scafe’s motion to dismiss claims as barred by the statute of limitations is granted to the extent plaintiff claims damages pursuant to §§ 1983 and 1985(3) for the period prior to June 16, 1980. Further, any recovery for plaintiff’s Title VII claims will be limited to two years prior to the date of filing her charge, or August 31, 1980. Defendants’ motion to dismiss plaintiff’s claims of retaliation under Title VII is denied. Defendants’ joint motion to dismiss plaintiff’s §§ 1985(3) and 1983 claims is denied.

IT IS SO ORDERED.


author: SPELLMAN, District Judge.

text:
    Donald GREGG, Sheryll Gregg, Jessie Gregg, and Gary Gregg, Plaintiffs, v. METROPOLITAN PROPERTY AND LIABILITY INSURANCE COMPANY, Defendant.
    No. 84-1635-CIV-EPS.
    United States District Court, S.D. Florida, Miami Division.
    Sept. 11, 1984.

      Robert H. Wiggins, Miami Shores, Fla., for plaintiffs.
    Gerald L. Bedford, Miami, Fla., for defendant.
   MEMORANDUM OPINION AND ORDER OF DISMISSAL

SPELLMAN, District Judge.

THIS CAUSE comes before the Court on the Defendant METROPOLITAN PROPERTY AND LIABILITY INSURANCE COMPANY’S Motion to Dismiss the Amended Complaint, filed on August 16, 1984. The Court having reviewed the record and being otherwise duly advised, it is hereby

ORDERED AND ADJUDGED that the motion is GRANTED and this cause is hereby DISMISSED.

Plaintiffs, the parents and brothers of the deceased, are residents of Florida. Defendant, the insurer of the homeowners in whose pool the deceased drowned, is incorporated in Rhode Island and does business in Dade County, Florida. The drowning incident occurred in Dade County, Florida.

The Plaintiffs assert in their Complaint that jurisdiction is conferred upon this Court pursuant to 28 U.S.C. § 1332. The Defendant moves to dismiss the cause of action on three grounds, any of which would be successful: this Court lacks subject matter jurisdiction; the Plaintiff has failed to follow Florida Statute § 768.20 (1980); and the Plaintiff has failed to join an indispensable party.

It is well settled law that all plaintiffs and all defendants must have diversity of citizenship to satisfy the requirements of 28 U.S.C. § 1332. According to 28 U.S.C. § 1332(e), however, METROPOLITAN is deemed a citizen of the state of which the insured is a citizen. This section provides:

For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any state by which it has been incorporated and of the state where it has its principal place of business: provided further, that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party defendant, such insurer shall be deemed a citizen of the state of which the insured is a citizen, as well as any state by which the insurer has been incorporated and of the state where it has its principal place of business.

In light of the statutory provisions, it appears that the Plaintiffs, the homeowners (insured), and the Defendant insurance company are all citizens of Florida, thus negating any notion that diversity may exist in this case.

Furthermore, it is clear that Florida law does not permit direct action suits against insurers. Florida Statute § 627.-7262 (1982) provides:

It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a judgment against a person who is insured under the terms of the policy for a cause of action which is covered by such policy.

In Newson v. Zurich, 397 F.2d 280, 281-82 (5th Cir.1968), the court held that: “a ‘direct action’ statute is not to be used as a vehicle to get an insurer into federal court where both the plaintiff and the insured are residents of the same state.” Not only have the Plaintiffs neither obtained nor sought a judgment against the insureds, thus precluding bringing suit against the insurer, but by failing to comply with Fla. Stat. § 627.7262, the Plaintiffs have no standing to use Fla.Stat. § 624.155 (1983) as a tool to recover from the insurer.

Finally, Florida’s Wrongful Death Statute requires that suit be brought “by the personal representative, who shall recover for the benefit of the decedent’s survivors and estate____” Fla.Stat. § 768.29 (1980). Plaintiffs have erroneously brought suit as the decedent’s survivors, rather than in accord with statutory instructions.

The complaint and the amended complaint show that the Plaintiffs have neglected to read state and federal statutes carefully. By failing to obtain a judgment against the insureds prior to bringing suit against the insurer, the Plaintiffs are precluded from proceeding with this action as against the insurer under Florida law. And, had the Plaintiffs considered the provisions of 28 U.S.C. § 1332(c), they would have realized that this action was simply doomed from the start due to a lack of diversity of citizenship among the parties.

Based on the above and foregoing, this cause be and the same is hereby dismissed.


text:
    UNITED STATES of America, Plaintiff, v. Isidoro ALFARO, et al., Defendants.
    No. 84-282-Cr-EPS.
    United States District Court, S.D. Florida, Miami Division.
    Sept. 17, 1984.
    Amelia A. Gomez, Asst. U.S. Atty., Miami, Fla., for plaintiff.

      Bennet Lapidus, Geoffrey Fleck, Jerry Burford, Miami, Fla., for defendants.
   MEMORANDUM OPINION AND ORDER AFFIRMING MAGISTRATE’S REPORT AND RECOMMENDATION AND DENYING DEFENDANTS’ MOTION TO SUPPRESS

SPELLMAN, District Judge.

THIS CAUSE came on to be heard before the Court on a review of the findings of fact and report and recommendation of United States Magistrate Charlene H. Sorrentino relative to the Defendants’ Motion to Suppress which was heard by Judge Sorrentino on August 24, 1984.

The magistrate made an initial finding of “standing”. After reviewing the testimony and the five photographs that were placed into evidence, the magistrate found that the Defendants did not have “any reasonable expectation of privacy to the open deck of this boat” (Tr. 123). In addition, Judge Sorrentino found that a valid arrest based on probable cause had been made of the Defendants and, therefore, the search of the vessel in question was incident to that arrest.

This Court has reviewed the testimony and photographs offered into evidence, as well as the findings of the magistrate.

Based upon this Court’s independent review of such record and the arguments of counsel, it is

ORDERED AND ADJUDGED that the magistrate’s findings of fact, report and recommendations be and the same are hereby affirmed and followed and the Defendants’ Motion to Suppress be and the same is hereby denied.

A substantial amount of the marijuana appeared on the deck of the boat in question and was accessible to the Florida Marine Patrol officer observing the same by merely picking up the corner of a raincoat covering one of the bales. It is obvious that no reasonably prudent individual would expect to find such expectation of privacy on the deck of a cigarette motor vessel.

For the sake of argument, if it could be assumed that the contention by the Defendants established that the marijuana was covered by a single tarp that ha'd been clipped systematically to the deck, the Court’s finding would be no different. It is not the particular means used to secrete the contraband but rather the degree to which one could reasonably anticipate an expectation of privacy based on the location of the contraband that is germane.

With regard to the latter theory expounded by the magistrate, assuming a reasonable expectation of privacy, the Court is of the opinion that one need not go to the extent that the magistrate did in this case in finding probable cause for the arrest of the Defendants and, therefore, having the search incident to that arrest. It is obvious from the testimony of the officers that they had become suspicious of the motor vessel because of its location and how it was riding in the water. The officers testified that a decision to board the vessel and to proceed with the standard inspection was made as the Marine Patrol boat approached the vessel. The inspection was rendered unnecessary when a strong odor of marijuana was discerned some 20 to 30 feet from the vessel. This strong odor, coupled with the other facts observed by the Marine Patrol officers, constituted probable cause for the subsequent seizure of the marijuana.

Defense counsel, based on an experiment before the magistrate regarding the odor emanating from a single bale of marijuana, suggests that this Court find the testimony of the officers as it pertains to the strong odor of the marijuana to be incredulous. Such an experiment would be analogous to claiming that if a farmer was blindfolded and could not readily ascertain whether or not one steer was occupying an acre of land that the same would be true if he was blindfolded and there were 27 such steer and a calf on the same acre. This Court for one would take judicial notice of the fact that the farmer’s assessment would be much more accurate and reliable in the latter circumstance.


author: BIGGERS, District Judge.

text:
    Hezekiah PATTON, Jr., Plaintiff, v. AETNA INSURANCE COMPANY and Shaw-Shelby Insurance Agency, Inc., Defendants.
    No. DC83-263-NB-D.
    United States District Court, N.D. Mississippi, Delta Division.
    Sept. 17, 1984.

      Ellis Turnage, Cleveland, Miss., for plaintiff.
    Roy A. Smith, Jr., Jackson, Miss., for defendants.
   MEMORANDUM OPINION

BIGGERS, District Judge.

This cause came on for hearing on the defendants’ motions for summary judgment, the plaintiff’s cross-motion for partial summary judgment as to the issue of coverage under an insurance policy, and the defendants’ alternative motions for partial summary judgment as to the issue of punitive damages. Having considered the pleadings, affidavits, depositions, and memoranda filed by the parties, and being fully advised in the premises thereof, the court is now in a position to rule on these motions.

This cause arose from the following facts, which are undisputed unless otherwise indicated. The plaintiff Hezekiah Patton, Jr. (Patton) purchased an old vacant house, which he intended to remodel into a convenience store. After obtaining a renovation loan, the plaintiff purchased two insurance policies on the house. The second insurance policy, a $40,000.00 “builder’s risk” policy with the defendant Aetna Insurance Company (Aetna) which is the subject matter of this suit, was sold to the plaintiff on September 11, 1980, by the defendant Shaw-Shelby Insurance Agency, Inc. (Shaw-Shelby). This policy by its terms protected against certain types of damages occurring to the building “while in the course of construction.” The house was destroyed by a fire of unknown origin on October 3, 1980. Apparently, the only work which had been performed at that time was the unhooking of plumbing and gas lines, the removal of a furnace, the removal of lattice work around the house, and discussions with two contractors regarding lowering of the house. The plaintiff seeks both recovery for the fire loss under the builder’s risk policy as well as punitive damages; the defendants deny liability on the grounds that the house was not “in the course of construction” at the time of the fire.

DEFENDANT SHAW-SHELBY’S MOTION FOR SUMMARY JUDGMENT

With respect to Shaw-Shelby, the plaintiff has failed to demonstrate any grounds for the imposition of liability. The defendants have asserted that the plaintiff selected Shaw-Shelby, that he specifically requested the builder’s risk policy, and that neither Shaw-Shelby nor any of its employees recommended this particular policy to the plaintiff. The plaintiff has in no way denied these allegations or raised any issue as to their truth. Furthermore, the plaintiff has made no specific allegations of negligence or wrongdoing against Shaw-Shelby or any of its employees. Thus, any cause of action against Shaw-Shelby must be founded upon the refusal of the defendant Aetna to pay the plaintiff under the insurance contract. An insurance agent acting on behalf of a disclosed carrier principal in procuring insurance policies for a client does not become a party to the insurance contract; thus, he may not be liable for damages caused by breach of the contract by the insurance company. Emersons, Ltd. v. Max Wolman Co., 388 F.Supp. 729, 735 (D.D.C.1975). Therefore, the defendant Shaw-Shelby’s motion for summary judgment is well taken and should be granted. Inasmuch as there is no just reason for delay, a final judgment shall be entered in favor of this defendant. Fed.R.Civ.P. 54(b).

DEFENDANT AETNA’S MOTION FOR SUMMARY JUDGMENT PLAINTIFF PATTON’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO LIABILITY

Both defendant Aetna and plaintiff Patton assert that summary judgment as to coverage is appropriate since there is no issue as to whether the policy was in effect.

As previously stated, the policy in issue covered certain damages occurring to the house “while in the course of construction.” The parties do not dispute that Patton performed some work on the house before it was destroyed by fire. However, the defendant insurer contends that Patton’s activities were merely preparation for “construction,” and therefore the loss was not within the risk assumed by the defendant under the policy.

As the opposing positions of the parties in this lawsuit demonstrate, the word “construction” is susceptible to varying interpretations. This court should construe ambiguous terms in an insurance contract so that the purpose of the policy will not be defeated. See, e.g., Aetna Life Insurance Co. v. Evins, 199 So.2d 238, 241 (1967). As a federal court sitting in diversity, the court is Erie bound to follow the substantive law of the State of Mississippi as to any interpretation. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938).

Newman v. National Fire Insurance Co., 152 Miss. 344, 118 So. 295 (1928) is the only Mississippi case found that construes a builder’s risk policy. Therein, fire destroyed lumber obtained from an old, dilapidated structure which the insured had demolished to acquire building material for a theatre. The policy in issue covered “material actually on the ground to be used or actually used ... while in the course of construction____” Although the lumber was on the ground at the time of the fire, the insurer had not begun using it in constructing a theatre. The Mississippi Supreme Court determined that the insured property, i.e., building materials on the ground to be used or actually being used in the construction of the theatre, had not come into existence at the time of the fire. Therefore, the loss was not covered by the builder’s risk policy. Id. at 349, 352, 218 So. at 296-97.

This court has some doubts regarding the Mississippi Supreme Court’s decision in Newman; however, that case is factually distinguishable from the situation at bar. The insured property in the present case, i.e., the building, was undoubtedly in existence at the time of the fire; furthermore, the plaintiff Patton undisputedly unhooked gas and plumbing lines, and removed both lattice work and a furnace from the house. Most significantly, the parties in Newman contemplated the erection of an entirely new building, whereas the parties in the present case understood that the plaintiff Patton intended to “renovate” a building, which necessarily entails both additions to and removals from an existing structure. Thus, Newman is of little help in construing the insurance contract’s ambiguous provision.

It is well established law that ambiguities in an insurance contract are reasonably construed in favor of the insured. See, e.g., Brander v. Nabors, 443 F.Supp. 764, 769 (N.D.Miss.), aff'd, 579 F.2d 888 (5th Cir.1978); State Farm Mutual Automobile Insurance Co. v. Taylor, 233 So.2d 805, 810 (Miss.1970). Furthermore, the policy must be construed in the light of its purpose and the hazards it was designed to protect against. Great American Insurance Co. v. Bass, 208 Miss. 436, 439, 44 So.2d 532, 533 (1950). The parties in the present case understood that Patton intended to renovate the house; thus, it is reasonable on these facts to interpret “construction” as encompassing alterations of any type, whether additions or removals. Accordingly, we hold as a matter of law that the endeavors of Patton constitute “construction” such that the policy was in force at the time of the fire. The motion by the plaintiff Patton for partial summary judgment as to liability therefore is well taken and should be granted. Accordingly, the motion for summary judgment by the defendant Aetna should be denied.

DEFENDANT AETNA’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO PUNITIVE DAMAGES

Defendant Aetna alternatively asserts that if its motion for summary judgment is denied, it is entitled to a partial summary judgment foreclosing liability for punitive damages. In view of this court’s denial of full summary judgment for Aetna, we must address this alternative motion.

Punitive damages should not be assessed against an insurance company for failure to pay an insurance claim unless the company had no arguable reason to deny coverage. Consolidated American Life Insurance Co. v. Toche, 410 So.2d 1303, 1305 (Miss.1982). In resolving cases dealing with bad faith, and particularly in determining whether punitive damages are appropriate, the Mississippi Supreme Court has held that if a genuine dispute over coverage exists, such dispute furnishes an arguable reason for refusing a claim whereby punitive damages are improper. See id. The court has also held that an arguable basis to deny payment exists when there is an issue as to whether the plaintiff has satisfied a condition or other term of the policy. See New Hampshire Insurance Co. v. Smith, 357 So.2d 119, 120 (Miss.1978). The general rule which prevails in this jurisdiction is that if, as a matter of law, there is an arguable reason for the insurance company to deny liability on the policy, punitive damages are improper regardless of whether the insurance company prevails or loses on the issue of liability. See Henderson v. United States Fidelity & Guaranty Co., 620 F.2d 530, 536 (5th Cir.1980); Reserve Life Insurance Co. v. McGee, 444 So.2d 803, 809 (Miss. 1983); Standard Life Insurance Co. of Indiana v. Veal, 354 So.2d 239, 248 (Miss. 1978); Lincoln National Life Insurance Co. v. Crews, 341 So.2d 1321, 1322 (Miss. 1977). In Michael v. National Security Fire & Casualty Co., 458 F.Supp. 128 (N.D.Miss.1978), it was noted that punitive damages are improper if the insurer has a legitimate or arguable reason for failing to pay the claim; furthermore, failure to pay must constitute “some intentional wrong, insult, abuse or gross negligence which amounts to an independent tort.” Id. at 131.

In the present case, the plaintiff Patton testified in his deposition that any work on the house was merely to prepare for renovation. The court is of the opinion that this statement provided an arguable reason for Aetna to deny liability on the insurance policy.

The plaintiff also argues, under Reserve Life Insurance Co. v. McGee, 444 So.2d at 809, that partial summary judgment regarding punitive damages in an insurance case is inappropriate when the ultimate issue of liability under the insurance contract must be determined at trial. This court reaffirms its decision in O’Connor v. Equitable Life Assurance Society of the United States, 592 F.Supp. 595 (N.D.Miss. 1984), in holding that Reserve Life has no applicability to pre-trial procedure.

Accordingly, the court is of the opinion that the defendant Aetna’s motion for partial summary judgment as to the issue of punitive damages is well taken and should be granted.

Let an order issue accordingly.


author: HAROLD L. MURPHY, District Judge.

text:
    IRVING COMMERCIAL CORPORATION, f/k/a Irving Factors Corporation, Plaintiff, v. SOUND FLOOR COVERINGS, INC., Defendant.
    Civ. A. No. C83-163R.
    United States District Court, N.D. Georgia, Rome Division.
    Sept. 18, 1984.

      Kevin C. Greene, Atlanta, Ga., for plaintiff.
    Paul T. Carroll, III, Rome, Ga., for defendant.
   ORDER

HAROLD L. MURPHY, District Judge.

The nonresident defendant in this action moves the Court to dismiss for lack of personal jurisdiction. After carefully considering Georgia’s long-arm statute, its interpretation by the courts, and the constitutional requirement of minimum contacts, the Court concludes that the Georgia Supreme Court would not exercise jurisdiction over the defendant in this case. The action is, therefore, dismissed.

FACTS

The plaintiff, Irving Factors, owns certain accounts receivable obtained from Sweetwater Carpet Corporation (“Sweetwater”) under a factoring arrangement. Among these accounts are defendant’s obligations amounting to $11,393.29 for carpet purchased. Defendant is a Washington corporation that distributes carpeting and floor covering materials throughout the Northwest United States. Irving Factors brought this diversity action in the federal court to collect on these accounts.

The nonresident defendant had the following “contacts” with Georgia. The defendant regularly attended trade fairs in Georgia where Georgia carpet manufacturers displayed their wares. Sweetwater was one of the manufacturers that displayed samples of its carpet at these trade fairs. As a result of Sweetwater’s pitch, the defendant visited Sweetwater’s mill to determine whether it would buy carpet from Sweetwater. The defendant apparently liked what it saw and, upon returning to Washington, placed orders with Sweet-water. The defendant then sent its trucks from Washington into Georgia to pick up the carpet. For the trip from Washington to Georgia, the defendant hauled goods for Georgia residents unrelated to the carpet transactions in order to cover the costs of sending the trucks across the country. In relation to this trucking business, the defendant possesses a certificate of authority to conduct motor carrier operations in Georgia and maintains a registered agent in Georgia, pursuant to O.C.G.A. § 46-7-17, who may be served in any action arising out of the carrier operations.

DISCUSSION

A federal court in a diversity action has personal jurisdiction over a nonresident defendant to the extent permitted by the long-arm statute of the forum state. Fed. R.Civ.P. 4(e); Southwire Company v. Trans-World, Metals & Company, Ltd., 735 F.2d 440, 442 (11th Cir.1984). Personal jurisdiction in this sale of goods transaction must thus be predicated on the first section of the Georgia long-arm statute:

A court of this state may exercise personal jurisdiction over any nonresident or his executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he were a resident of the state, if in person or through an agent, he:
(1) Transacts any business within this state____

O.C.G.A. § 9-10-91 (1982). This transacting business prong of the long-arm statute has been interpreted in several Georgia Supreme Court opinions.

In Davis Metals, Inc. v. Allen, 230 Ga. 623, 198 S.E.2d 285 (1973), the supreme court held that the defendant’s physical presence while executing an employer/employee noncompetition contract in Georgia constituted transacting business within the state such that long-arm jurisdiction existed over the nonresident defendant. Georgia Court of Appeals cases have extended the holding in Davis Metals, holding that negotiations in Georgia leading to an advertising contract, Delta Equities, Inc. v. Larwin Mortgage Investors, 133 Ga.App. 382, 211 S.E.2d 9 (1974), or visits to Georgia subsequent to a loan contract, Shea/Rustin, Inc. v. Home Fashion Guild, Ltd., 135 Ga.App. 88, 217 S.E.2d 405 (1975), constitute transacting business, even though the contract is executed elsewhere.

In J.C. Penney v. Malouf, 230 Ga. 140, 196 S.E.2d 145 (1973), the supreme court was presented with a sale of goods contract as in the present case. The supreme court held that a nonresident defendant that places goods in the stream of Georgia commerce avails himself of the privilege of conducting business in Georgia and is therefore subject to the court’s long-arm jurisdiction under the transacting business prong. This holding was extended by the Georgia Court of Appeals in Hollingsworth v. Cunard Line Limited, 152 Ga.App. 509, 263 S.E.2d 190 (1979). The court quoted Davis Metals for the proposition that “[T]he trend of the opinions is to construe long arm ‘transacting any business’ statutes most liberally and to uphold the jurisdiction of the court of the plaintiff’s residence in actions arising, either directly or indirectly, out of such transactions.” Id. at 512, 263 S.E.2d 190. The court held that even though the nonresident defendant, in providing vacation travel services for Georgia residents, had not physically placed goods in the stream of Georgia commerce, the defendant had availed himself of the privilege of conducting commercial activities in Georgia on a continuing and systematic basis and was therefore transacting business under the Georgia long-arm statute.

In O.N. Jonas Co., Inc. v. B & P Sales Corp., 232 Ga. 256, 206 S.E.2d 437 (1974), the supreme court was presented with a second sale of goods contract. The supreme court held that a nonresident defendant who merely purchases goods manufactured in Georgia, and thus places no goods himself in the stream of Georgia commerce, is not subject to the long-arm jurisdiction of the Georgia courts. Moreover, the supreme court refused to exercise jurisdiction despite the defendant’s having visited the Georgia manufacturing plant “which eventually resulted in the purchases,” id. at 258, 206 S.E.2d 437, and despite the defendant’s having taken the goods FOB shipping point — i.e., in Georgia.

The O.N. Jonas case created some uncertainty in the court of appeals as to whether the supreme court was actually extending long-arm jurisdiction to the constitutional limit. In Process Systems Inc. v. Dixie Packaging Co., Inc., 137 Ga.App. 452, 224 S.E.2d 103 (1976), the Georgia court was asked to give full faith and credit to a default judgment entered by a New Jersey court pursuant to their finding that long-arm jurisdiction existed over the Georgia defendant. The Georgia court noted that, unlike Georgia’s long-arm statute which confers jurisdiction over a foreign corporation as to a cause of action arising from the transaction of “any business” within the state, the New Jersey long-arm statute expressly confers long-arm jurisdiction to the extent permitted under the due process clause. Id. at 454, 224 S.E.2d 103. On facts similar to O.N. Jonas in terms of the nonresident’s contacts with the state, the court upheld the New Jersey exercise of jurisdiction. As for the supreme court’s opinion in O.N. Jonas, holding that similar facts did not meet the statutory requirement of transacting business, the court cryptically observed that:

Mailing or telephoning orders to another state does not of itself constitute the transaction of any business where, although agents of the foreign corporation visited the Georgia seller’s manufacturing plant, no goods were purchased in Georgia and no contracts were executed in Georgia. O.N. Jonas Co. v. B & P Sales, 232 Ga. 256 (206 S.E.2d 437). That the transacting business statutes may be narrower than the limits of due process, see 27 ALR3d 397, Anno., Jurisdiction over Nonresident, §§ 2, 5.

Process Systems 137 Ga.App. at 456, 224 S.E.2d 103.

Despite the uncertainty expressed by the Georgia Court of Appeals, the former Fifth Circuit Court of Appeals expressed no doubt whatsoever in concluding that the Georgia Supreme Court intended to extend the transacting business prong of the Georgia long-arm statute to the constitutional limit. See Gold Kist Inc. v. Baskin-Robbins Ice Cream Company, 623 F.2d 375, 378 (5th Cir.1980). In Gold Kist, the nonresident defendant purchased Georgia pecans for use in ice cream. Much of this ice cream was produced in a plant in Columbus Georgia. The defendant had visited the plaintiff’s pecan plant and had ordered certain quantities of pecans. The court of appeals, when confronted with the issue of personal jurisdiction, distinguished O.N. Jonas by scrutinizing the nature of the nonresident defendant’s physical presence in Georgia as the Georgia courts had been doing in non-sale-of-goods contract cases. The court was able to find several ephemeral distinctions based on these cases. The court found that the nonresident defendant, rather than visiting the plant before placing an order as had the defendant’s in O.N. Jonas, went to the plant to negotiate before placing an order. The court also found that the nonresident defendant, rather than placing a purchase order in the mail, put a contract in the mail that was subsequently executed in Georgia by the plaintiff.

The court of appeals in Gold Kist cited cases that involved non-sale-of-goods contracts in drawing these distinctions. In non-sale-of-goods contracts, however, the negotiation, the execution, and the supervision of the contract, will often play a much greater role in the relationship between the parties than they do in the typical sale of goods contract. Physical presence in the state of Georgia during one of these phases provides a clearer indicator of the actual transaction of business in the state. In sale of goods contracts, on the other hand, “negotiation” is often restricted to a simple determination of whether the goods conform to the buyer’s needs. “Execution” generally consists of sending a purchase order form with boiler plate provisions that may or may not become the contract. And supervision is generally absent. The Georgia courts have implicitly chosen, in run-of-the-mill sale of goods cases, to focus on whether the nonresident defendant has availed himself or herself of the privilege of placing goods in the stream of Georgia commerce. In Gold Kist, the ephemeral distinctions drawn between the facts in that case and the facts in the O.N. Jonas case were unnecessary. Had the court focused on whether the defendant had availed itself of the Georgia market for its goods, the court could have found that the pecans, while ordered from out of state, were placed directly in the stream of Georgia commerce. They were shipped to Columbus, Georgia. Thus regardless of the presence or absence of the defendant in Georgia before placing the orders for pecans and regardless of where the contract was executed, the nonresident was transacting business in Georgia for purposes of the long-arm statute.

The action presently before the Court, however, squarely presents the problem created by the O.N. Jonas case— whether or not the Georgia Supreme Court interprets the transacting business prong of the long-arm statute to extend to the limits of constitutional due process. Under the rationale of O.N. Jonas, the Court can find no meaningful factual distinctions between this action and the O.N. Jonas case. The plaintiff has suggested that actual negotiations took place in Georgia before the order for carpet was placed from Washington. The evidence reveals, however, that while the defendant regularly attended trade fairs in Georgia, the “negotiations” in this sale-of-goods case were no more extensive than the visit to the plaintiff’s plant in the O.N. Jonas case. The plaintiff also has suggested that the defendant was physically present when the carpet was picked up, because the carpet was shipped F.O.B. the plant in Georgia. Yet, in O.N. Jonas the goods were also shipped F.O.B. shipping point. Admittedly, the defendant in this case operated its own trucking line and, therefore, had an agent shipping the carpet to Washington, rather than an independent trucking company. As for a cause of action arising from the trucking activities, however, any attempt to exercise long-arm jurisdiction would be futile. The defendant is a resident for that purpose, and the long-arm statute applies only to nonresidents. In any event, this case does not involve a cause of action arising from the defendant’s trucking activities.

The plaintiff has failed to show that the contacts that relate to the transaction giving rise to this cause of action were any greater than those in O.N. Jonas. Yet, the Court must agree with the plaintiff that the broad interpretation given the Supreme Court’s decision in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), leads inevitably to the conclusion that constitutional minimum contacts exists. Thus the Court is faced with, on the one hand, the Eleventh Circuit’s unequivocal statements that the Georgia courts have interpreted the Georgia long-arm statute to reach to the constitutional limit and, on the other hand, the facts of the O.N. Jonas case which, given the Georgia Supreme Court’s rationale, are impossible to distinguish from the facts before the Court.

The Court concludes that the Eleventh Circuit’s statements that transacting business under the statute is interpreted to mean constitutional minimum contacts is dicta not binding on this Court. In Gold Kist, the holding of the Eleventh Circuit Court was consistent with O.N. Jonas without the need to look beyond the rationale of the Georgia Supreme Court to the Due Process clause. In Southwire Co. v. Trans-World Metals & Company, Ltd., 735 F.2d 440 (11th Cir.1984), the nonresident defendants shipped scrap metal into Georgia. Thus, consistently with the Georgia Supreme Court’s holding in J.C. Penney, the court of appeals found that the defendant’s were transacting business in Georgia. The court’s bald statement that the statute extends to the limits of procedural due process was unnecessary as the defendant’s had introduced goods into the stream of Georgia commerce.

Moreover, the Georgia Supreme Court has reinforced the boundary of the transacting business prong of the long-arm statute that stops short of the boundary of constitutional minimum contacts. Following the Supreme Court’s decision in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), in which the Supreme Court reaffirmed that the concept of minimum contacts involves not only reasonableness to the defendant, but comity between state sovereigns, the Georgia Supreme Court decided Wise v. State Board for Examination, Qualification & Registration of Architects, 247 Ga. 206, 274 S.E.2d 544 (1981). In Wise, the supreme court held that the National Council of Architectural Registration Boards (“NCARB”) was not transacting business under the long-arm statute even though one of its directors was a resident of Georgia, the board prepared exams that were given to architectural applicants in Georgia, it regulated the practice of architecture nationally, and members of the board lobbied the Georgia legislature in conjunction with proposed NCARB guidelines for granting reciprocal registration. The plaintiff could not sue the NCARB in Georgia over their refusal to grant him reciprocal registration. Notably, the supreme court quoted the plaintiff as urging that the defendant had “minimum contacts with [the] state,” but added to this standard, “[as] required by the [long-arm] statute.” Id. at 209, 274 S.E.2d 544. The court did not say, “as required by constitutional due process.” Moreover, the supreme court cited O.N. Jonas in support of its holding, indicating the continued vitality of that opinion.

Professor Ellington has suggested that the Wise case and another Georgia appellate court case, Coopers & Lybrand v. Cocklereece, 157 Ga.App. 240, 276 S.E.2d 845 (1981), indicate that the World Wide Volkswagen case has had an effect on the Georgia courts’ interpretation of the long-arm statute.

Taken together, Wise and Coopers & Lybrand show the first impact of WorldWide Volkswagen on the exercise of jurisdiction over nonresidents under the Georgia long-arm statute. It seems that the former willingness of Georgia appellate courts to reach to the farthest limits permitted by due process may have been chilled.

Ellington & Gary, Annual Survey of Georgia Law — Trial Practice, 33 Mercer L.Rev. 275, 283 (1981). Whether the Georgia courts are pulling back, or whether the statutory boundary has always been short of the constitutional boundary in “transacting business” cases, this Court finds that the Georgia Supreme Court would not exercise personal jurisdiction over the defendant in this case.

ACCORDINGLY, the defendant’s motion to dismiss is GRANTED.

      . The court relied heavily on Shea/Rustin, Inc. v. Home Fashion Guild Ltd., 135 Ga.App. 88, 217 S.E.2d 405 (1975) (contract to organize, prepare and print advertising campaign) and Delta Equities, Inc. v. Larwin Mortgage Investors, 133 Ga.App. 382, 211 S.E.2d 9 (1974) (loan contract).