author: CAFFREY, Chief Judge.

text:
    GUNDERSEN & SON, INC., Plaintiff, v. Albert L. COHN, et al., Defendants.
    Civ. A. No. 71-0832-C.
    United States District Court, D. Massachusetts.
    Oct. 26, 1984.

      Edmund M. Hurley, Joseph Walsh, White, Inker, Aronson, Connelly & Norton, Robert J. O’Regan, James Hamilton, David H. Lamson, Boston, Mass., for defendants.
    David H. Lamson, Boston, Mass., for plaintiff.
   OPINION

CAFFREY, Chief Judge.

This is a civil action in which plaintiff, Gundersen & Son, Inc., a Massachusetts corporation, seeks to recover sums allegedly owed to it by defendants Albert and Sylvia Cohn, residents of New Jersey, for the construction of a summer home on the island of Martha’s Vineyard. Defendants counterclaim for water damage to the house allegedly caused by plaintiff’s faulty workmanship, and for the value of certain items of defendants’ personal property which plaintiff allegedly removed from the construction site.

Plaintiff initially brought suit in state court, and defendants removed the case to federal court on the basis of diversity of citizenship. 28 U.S.C. §§ 1332, 1441. The ease was then heard before a master, pursuant to Fed.R.Civ.P. 53. Both parties object to findings contained in the master’s report, and the case is now before this Court on cross motions for judgment.

The central issue in this case is whether the parties agreed that plaintiff would build defendants’ house for a predetermined maximum price, or whether they agreed that defendants would pay plaintiff’s construction expenses plus a fixed profit margin, regardless of the total cost of the project. The master made numerous findings of fact concerning the communications between the parties. Presented below is a summary of his findings, which are firmly supported by the evidence, along with certain additional facts which are also established by the Record.

In August, 1969, the parties met several times to discuss plaintiff’s building a house for defendants on Martha’s Vineyard. Master's Report, If 13. Defendants showed plaintiff’s representatives, Roy Gundersen and Earle Ray, their preliminary plans and specifications. Defendants also informed Mr. Gunderson and Mr. Ray that they wanted to pay no more than $90,000 for the house. Testimony of Roy Gundersen, Record at 1-71 (May 23, 1975). In order to bring the cost of the project under $90,000, plaintiff’s agents insisted that certain changes be made in the plans and specifications. Master’s Report, II26. Defendants agreed to these changes, which included eliminating the garage, reducing the size of the deck, and using less expensive materials in many areas of the house. Master’s Report, ¶ 27.

As a result of these discussions, plaintiff’s agents prepared a letter of intent, to be signed by Mr. Cohn, authorizing plaintiff to proceed with construction. Master’s Report, 1116. This letter of intent, dated August 15, 1969, stated in part:

It is our intention to enter into a formal contract with you within a period of 10 days based on The American Institute of Architects Agreement (AIA Document A 111), and the General Conditions of the Contract for the cost of the work plus a fee of 15% for overhead and profit. If for any reason whatsoever it is not possible to conclude the formal contract, we agree to pay you the net cost of (materials, labor, rental and cost of moving equipment). To the above costs will be added 15% for overhead and profit____ Upon execution of the formal contract this Letter of Intent shall be superseded by it.

Master’s Report, 1122.

Before signing this letter, Mr. Cohn added the following handwritten amendment: “Upset price is $90,000. Completion by June 1, 1970.” Master’s Report, 1124. “Upset price,” a term commonly used in the building trade, means a guaranteed maximum price given by a builder to an owner. Master’s Report, 1125.

Prior to August 27, 1969, defendants’ architect, Norman Hoberman, filled out and sent to plaintiff a form contract drafted by the American Institute of Architects. Master’s Report, U 28. However, neither this contract, nor any other formal agreement was ever executed by the parties. Master’s Report, 1131 and 1139.

By letter of August 27, 1969, Mr. Gundersen informed Mr. Cohn that he wished to amend several provisions of the proposed form contract. This letter concluded:

Also, Addendum No. 1, dated 8/20/69, does not include all the changes that we discussed in setting the upset price at $90,000 and as yet we have not received the amended drawings dated 8/20/69, numbered Al-All, as specified in this article.
We agree to this contract with the understanding that this letter becomes part of the contract documents and that if after we receive the amended drawings we find it necessary to increase the upset figure, any costs exceeding $90,000.00 would not be subject to the 15% for profit and overhead, but would represent only the cost of the work.

Master’s Report, ¶ 30.

Plaintiff began construction of the Cohns’ house in September of 1969. Master’s Report, ¶ 35. The completed plans for the house, including the cost-cutting changes which plaintiff had suggested, were in plaintiffs possession by the middle of that month. Master’s Report ¶ 34. After receiving these amended plans, plaintiff never found it necessary to increase the original upset figure of $90,000. Master’s Report, 1141; Testimony of Roy Gundersen, Record at 1-83, 84 (May 23, 1975).

On October 30, 1969, plaintiff’s agent, Earle Ray, wrote Mr. Cohn a letter stating, in part:

As per our conversation of 10/30/69, it is my understanding that we shall continue construction under the letter of intent originally agreed upon.
However, upon completion of the exteri- or ... we shall meet and discuss in detail the interior finish schedule and at that time enter into a formal contract agreement with an upset price for completion.

Master’s Report, ¶ 38.

From October 11, 1969 to September 21, 1970, plaintiff sent defendants fifteen invoices, totalling $116,124.73. Master’s Report, ¶ 42 and H 44. Plaintiff admits, however, that defendants were inadvertantly overchanged $3,500.00. Master’s Report, II49. Therefore, total billing for the job should have been $112,624.75.

From October 11, 1969 through May 11, 1970, each of plaintiffs invoices included a 15% fee for overhead and profit. On the invoice of May 11, 1970, however, there appeared for the first time a calculation of the total cost of the project to date. This invoice indicated that defendants had been billed a total of $90,117.62. All subsequent invoices charged for labor and materials only and did not include a 15% fee. Master’s Report, 1142 and U 43.

The Cohns paid plaintiff a total of $91,-123.97 for the construction of the house. Defendants submitted their last payment to plaintiff on June 29, 1970. Master’s Report, ¶ 3. Thereafter, defendants refused to make any further remittances.

Defendants moved into their new summer home in the late spring of 1970. Soon after taking up residence, they observed water leaking into the structure and staining the interior. The walls became damp and musty, some floors became warped and blackened, and the staining worsened with every storm. Master’s Report, 1156-58. Mr. Gundersen became aware of the problem before the house was finished, but he was unable to determine the cause of the leaks. Master’s Report, 11 55. The leakage continued until the summer of 1974 when Carmen Ciancio, a carpenter hired by Mr. Cohn, located the source of the problem. Mr. Ciancio discovered that the metal capping on the top of the roof had been cut by a knife or a saw, allowing water to penetrate the roof. Master’s Report, 11 59-61. While building the house, plaintiff’s workmen had used either a skillsaw, a razor knife, or a carpenter’s saw to trim the shingles at the top of the house. Master’s Report, II62. Mr. Ciancio repaired the roof and eliminated the leaks by attaching a saddle board to the ridge of the roof. Master’s Report, II 63-64. The master found that the water damage to the house can only be repaired by replacing all the affected wood, and that the reasonable cost of replacement is $17,800. Master’s Report, 1165-66.

Plaintiffs Claim

Plaintiff alleges that defendants still owe $21,500.78 for the construction of their summer home. Plaintiff bases its claim on alternative theories. First, it asserts that it is entitled to recover in quantum meruit, because the parties never entered into a formal contract establishing a price for the work. Second, plaintiff contends that, if the parties did agree on price, they agreed that defendants would pay plaintiff its expenses plus 15% for overhead and profit. Defendants do not dispute that they agreed to pay plaintiff the cost of construction plus 15%. They maintain, however, that the parties also agreed to a ceiling price of $90,000, an amount which plaintiff has already received.

On the basis of the facts set forth above, I find that the parties agreed to an upset price of $90,000 for the construction of the house. From the outset of negotiations between the parties, defendants insisted that plaintiff build the house for $90,000. In order to meet this financial limitation, plaintiff required that defendants substantially alter their preliminary plans. Defendants agreed to make the numerous changes which plaintiff recommended. These initia1 actions indicate that the parties viewed the $90,000 figure as a common goal.

The content of the parties subsequent correspondence confirms the existence of a price agreement. Mr. Cohn expressed his own understanding of the price terms when he amended the August 15th letter of intent to include the $90,000 upset figure. Mr. Gundersen subsequently wrote Mr. Cohn, stating:

Addendum No. 1 ... does not include all the changes that we discussed in setting the upset price at $90,000 ____ We agree to this contract with the understanding that ... if after we receive the amended drawings we find it necessary to increase the upset figure, any costs exceeding $90,000 would not be subject to the 15% for profit and overhead, but would represent only the cost of the work. (Emphasis added).

This letter plainly indicates that Mr. Gundersen agreed to build the house for a maximum price of $90,000, subject to any increase which the amended plans might necessitate. Mr. Gundersen had the amended plans in his possession by mid-September. He himself testified that, after examining the amended plans, he never felt compelled to increase the upset figure which the parties had originally established. Therefore, the express condition which would have nullified plaintiffs assent to the $90,000 upset price never materialized.

Mr. Ray’s letter of October 30th does not alter the parties’ agreement as to price. I find that this letter is merely an ineffective attempt by plaintiff to revoke its previous assent to the upset figure of $90,000.

Determining that the parties agreed to a maximum price of $90,000 for the construction of the summer house does not end the inquiry in this case. It is also necessary to decide whether they intended to be bound by their agreement prior to the execution of a formal contract. The correspondence between plaintiff and defendants, set forth above, shows that they had planned to formalize their agreement. Whether parties who contemplate executing a formal contract intend to be bound by their informal agreements in the absence of such a document depends on the circumstances of the case. Restatement (Second) of Contracts, § 27. “The inclusion of a provision for the later drawing up of a formal memorial of the terms of an agreement, written or oral, is not necessarily inconsistent with an intent to be presently bound to an agreement in its original informal state.” Nigro v. Conti, 319 Mass. 480, 482, 66 N.E.2d 353 (1946).

In this case, I find that the parties did intend to be bound by the agreement which they reached in August of 1969. Plaintiff’s construction team began working full time on defendants’ house in September of that year. It is inconceivable that Mr. Gundersen and Mr. Ray would have authorized such action had they not believed that defendants were contractually bound to pay them for their work. The Cohns, in turn, sent plaintiff monthly payments, many of which exceeded $10,000, until the $90,000 limit was reached. Defendants’ conduct indicates their understanding that they were legally obligated to pay plaintiff as much as $90,000 for the construction of their house.

Because I find that the parties agreed on an upset price of $90,000, and I further find that they intended their agreement to be binding, I rule that plaintiff’s claim for $21,500.78 should be denied.

Defendants’ Counterclaims

Defendants assert two counterclaims. First, they contend that the house which plaintiff built for them was not constructed in a workmanlike manner. Defendants claim that, as a result of plaintiff’s faulty workmanship, water leaked into the house and caused extensive damage to the interi- or of the structure. Second, defendants allege that, during construction, “certain items of personal property owned by the ... [defendants] were taken by the agents or servants of the ... [plaintiff] corporation.” Defendants’ Counterclaim III, ¶ 2.

With regard to defendants’ first counterclaim, the master found that the Cohns did not take diligent steps to mitigate the damage which resulted from the leakage problem. This finding is supported by the evidence. Although defendants quickly discovered that living in the house “was like living in a boat,” Testimony of Sylvia Cohn, Record at 4-109 (July 23, 1976), and that the damage worsened with every storm, Id. at 4-106, defendants saw fit to hire only two repairmen to investigate the problem in a period of four years. Testimony of Albert Cohn, Record at 5-74, 75 (October 16,1976). Defendants’ architect, Norman Hoberman, was also made aware of the leakage, but his attempt to find its source did not extend to an examination of the roof. Id. at 5-76. Because I rule the master was correct in finding that defendants failed to mitigate the water damage to the house, I rule that defendants’ first counterclaim should be denied.

I further rule that defendants’ second counterclaim, for personal property allegedly taken by plaintiff, should also be denied. The master found that he could not assess damages on this counterclaim because the Cohns had produced no probative evidence of the value of the items allegedly taken. Master’s Report ¶ 7. A review of the Record indicates that defendants not only failed to prove the value of the property in question, but also failed to show plaintiff’s responsibility for its removal.

For the reasons set forth in this opinion, I rule that both plaintiff’s claim and defendants’ counterclaims should be denied.

Order accordingly.

       The amount which defendants have paid in excess of $90,000 is not a subject of dispute in this case.


source: Caselaw Access Project

author: LEIGHTON, District Judge.

license: Public Domain

text:
    Thomas RACHFORD, Plaintiff, v. EVERGREEN INTERNATIONAL AIRLINES, INC., a corporation, and Evergreen International Aviation, a corporation, Defendants.
    No. 84 C 3044.
    United States District Court, N.D. Illinois, E.D.
    Oct. 26, 1984.

      Stuart H. Brody, Kathryn M. Cochran, Brody & Stein, Chicago, 111., for plaintiff.
    Warren C. Ingersoll, Lord, Bissell & Brook, Chicago, 111., for defendants.
   Memorandum

LEIGHTON, District Judge.

This cause is before the court on defendants’ motion, pursuant to Rule 12(b)(6), Fed.R.Civ.P., to dismiss plaintiff’s complaint. It is axiomatic that under this rule a complaint should be dismissed only if it appears beyond doubt that a plaintiff can prove no set of facts on which relief can be granted. Hishon v. King & Spalding, — U.S.-, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984). The facts, alleged by plaintiff, and taken as true for purposes of this motion, are as follows.

I

Plaintiff, Thomas Raehford, was formerly employed by Evergreen International Airlines as a flight engineer. He was an experienced aircraft mechanic and held a 727 Flight Engineer Rating, an Air Frame & Power Plant license, and a Flight'Engineer license. In the course of performing maintenance tasks for the airline, plaintiff noted irregularities in Evergreen’s operating procedures, including inattention to aircraft maintenance requirements imposed by Federal Aviation Administration (FAA) regulations which he brought to the attention of Penn Stohr, Evergreen’s Vice President of Maintenance, at corporate headquarters in McMinnville, Oregon. Plaintiff also noticed that aircraft # 864 consumed excessive oil and told Stohr of this problem on successive occasions. When plaintiff was on aircraft # 864 on June.25, 1984, on a flight from Ontario, California to New-burgh, New York, the aircraft required oil during a stop at O’Hare airport; plaintiff warned two Evergreen employees that # 864 would probably require shutdown due to the engine problem.

On June 26, 1984, the airline discharged plaintiff because he had informed the FAA about the excessive oil consumption of aircraft # 864, and because of his excessive complaints to supervisors and other employees. Plaintiff, an Illinois citizen, then brought this action against defendants Evergreen International Airlines, Inc., and Evergreen International Aviation, Inc., Oregon corporations, invoking the court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332, alleging wrongful discharge in violation of Illinois law, the Federal Aviation Act, 49 U.S.C. §§ 1421, 1425; and under the Railway Labor Act, 45 U.S.C. §§ 152, and 181, et seq.

II

Plaintiff’s claim under Illinois law is based on the tort of retaliatory discharge, a cause of action available to an at will employee (as plaintiff was), when his termination is in violation of a public policy of the State of Illinois. Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981); Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978). However, as defendants point out, this cause of action is a narrow exception to the usual Illinois rule that an employer may freely discharge an at will employee. To state a claim for retaliatory discharge, a plaintiff must allege that his termination contravenes a clear mandate of public policy of the state. Here, plaintiff does not rely on State of Illinois law, but on federal law in support of his claim; and thus, this court concludes that he has no viable state claim for wrongful discharge. See Olguin v. Inspiration Consolidated Copper Co., 740 F.2d 1468 (9th Cir.1984). While it is undoubtedly true, as plaintiff claims, that Illinois has a general policy in favor of aviation safety, the state has no interest in enforcing federal law, even if that federal law is incorporated, as plaintiff suggests, in the state’s general public policy. Id. at 1475. Moreover, this court finds it difficult to discern why Illinois public policy would be implicated by the discharge of an employee of an Oregon corporation for complaints which occurred in Oregon regarding maintenance of aircraft which flew over the entire United States. Defendants’ motion to dismiss Count I is therefore granted.

Plaintiff bases his claim in Count II on a right of action under the Federal Aviation Act. However, Congress did not expressly provide a right of action under that statute, nor does an implied right of action exist. Pavolini v. Bard Air Corp., 645 F.2d 144 (2d Cir.1981). The relevant provisions of the act do not require an air carrier to continue to employ an employee, nor do they prohibit a carrier from discharging an employee for reporting safety violations; thus an action seeking redress for loss of employment does not flow from any statutory requirement or violation, and cannot be maintained. Id. at 147. Defendants’ motion to dismiss Count II on this ground is granted.

In Count III, plaintiff alleges that his consultation with fellow employees and representation of their joint safety concerns to management constituted protected activity within the Railway Labor Act. However, that act does not cover concerted activities unrelated to union organizing. 45 U.S.C. § 152, Fourth. See also Davin v. Delta Air Lines, Inc., 678 F.2d 567 (5th Cir.1982). Because plaintiff states in his complaint, Count I, para. 10, that “at none of the times relevant herein did plaintiff belong to a labor organization,” his claim under the Railway Act must fail. Defendants’ motion to dismiss Count III is granted.

In light of the above, this court is forced to conclude that plaintiff has failed to state a claim on which relief can be granted, and that his remedy, if any, lies in the state courts of Illinois or, more plausibly, in the courts of Oregon. While it is perhaps lamentable that one who “whistle blows” regarding such important matters as air safety should be discharged from his employment without a remedy under the Federal Aviation Act, Congress has not seen fit to protect employees from such retaliation. Until that time, a federal court can provide no recourse to an employee discharged for reporting violations of federal safety regulations. Pavolini v. Bard Air Corp., 645 F.2d at 148. Accordingly, defendants’ motion to dismiss is granted, and this suit is dismissed in its entirety.

So ordered.


author: CLEMON, District Judge.

text:
    Russell JACKSON, et al., Plaintiffs, v. The PEOPLE’S REPUBLIC OF CHINA, a foreign government, Defendant.
    Civ. A. No. 79-C-1272-E.
    United States District Court, N.D. Alabama, E.D.
    Oct. 26, 1984.

      W. Eugene Rutledge, Rutledge & Year-out, Birmingham, Ala., for plaintiffs.
    Warren Lightfoot, Bradley, Arant, Rose & White, Birmingham, Ala., for defendant.
   MEMORANDUM OF OPINION

CLEMON, District Judge.

The plaintiffs instituted this action on November 13, 1979 seeking payment of certain bearer bonds, now in default, which were issued by the Imperial Chinese Government in 1911. The jurisdiction of the Court was invoked under the Foreign Sovereign Immunities Act of 1976 (“FSIA”), 28 U.S.C. §§ 1330, 1391 and 1602 et seq. A default judgment was entered against the defendant, the People’s Republic of China (China) on October 21,1981 due to China’s failure to appear or answer. Damages were subsequently awarded in 1982. 550 F.Supp. 869.

In August of 1983, China made a special appearance requesting the Court to set aside its entry of default judgment. On February 27, 1984, following a hearing on the issue, this Court entered an order pursuant to Rule 60(b) of the Fed.R.Civ.P. which set aside the default judgment against China. Noting that the controversy was fraught with jurisdictional issues and mindful of the far reaching ramifications that the ultimate decision could have on Sino-American relations, the Court found that justice and the public interest dictated that the default judgment be set aside.

The case is now before the Court upon China’s motion to dismiss. In support of its motion, China alleges that the FSIA, which was enacted in 1976, does not retroactively apply to a cause of action arising out of a 1911 transaction.

The law is clear that the FSIA is the exclusive basis for jurisdiction in this case. Ruggiero v. Compania Peruana de Vapores, 639 F.2d 872, 875-76 (2nd Cir.1981); Rex v. Compania Pervana de Vapores, 660 F.2d 61, 65 (3rd Cir.1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 441 (1982); Williams v. Shipping Corp. of India, 653 F.2d 875, 880-81 (4th Cir.1981), cert. denied, 445 U.S. 982, 102 S.Ct. 1490, 71 L.Ed.2d 691 (1982); Goar v. Compania de Vapores, 688 F.2d 417 (5th Cir.1982); McKeel v. Islamic Republic of Iran, 722 F.2d 582 (9th Cir.1983).

Therefore, the quest'm of the retroactive application of the statute is dispositive of the case, if the statute is found to be prospective only. In that situation, the case must be dismissed for want of jurisdiction.

I.

Courts generally look unfavorably upon the retroactive application of statutes. In the landmark case of Union Pac. R. Co. v. Laramie Stock Co., 231 U.S. 190, 34 S.Ct. 101, 58 L.Ed. 179 (1913) the Supreme Court pronounced the basic tenet governing the application of statutes as follows:

... The first rule of construction is that legislation must be considered as addressed to the future and not to the past. The rule is one of obvious justice ... [and] has been expressed in varying degrees of strength, but always of one import, that a retrospective operation will not be given to a statute which interferes with antecedent rights ... unless such be “the unequivocal and inflexible import of the terms, and the manifest intention of the legislation.” [quoting United States v. Heth, 3 Cranch 399, 413, 2 L.Ed. 479, 483],

231 U.S. at 199, 34 S.Ct. at 102.

It is equally well established that the rights of a party pursuant to a contractual agreement are determined by the law existing when the contract was made. “Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order.” Home Building and Loan Association v. Blaisdell, 290 U.S. 398, 435, 54 S.Ct. 231, 239, 78 L.Ed. 413 (1934).

These controlling principles dictate that the Court determine whether retroactive application would encroach upon notions of fairness and justice by interfering with China’s legitimate expectations based upon the existing law at the times relevant to this controversy.

Historically, the doctrine of absolute immunity was internationally recognized as the policy governing the acts of a foreign state. The American doctrine of absolute sovereign immunity was enunciated as early as 1812 by the United States Supreme Court in the bulwark case of The Schooner Exchange v. McFadden, 7 Cranch 116, 3 L.Ed. 287 (1812). This doctrine remained indubitably intact, as a basic tenet of American law when the Hukuang Railway Bonds were issued in 1911; it continued to be the law of our country until the date of the maturity of the bonds in 1951.

The doctrine of absolute immunity slowly began to lose momentum in the thirties and forties and it eventually gave way in 1952. At that time the United States Department of State adopted the standard of restrictive sovereign immunity as the official policy of the United States. 26 Dept. State Bull. 984 (1952) (the “Tate Letter”). This theory provided that a foreign sovereign was immune from jurisdiction with respect to its public acts {jure imperii) but not as to its private acts {jure gestionis).

Finally, in 1976, the policy of restrictive sovereign immunity as embodied in the Tate Letter was codified by the enactment of the FSIA.

The foregoing chronology of events convincingly establishes that restrictive immunity was not the law at the time of the issuance or maturity of the bonds at issue. Therefore, in order for restrictive immunity, as codified in the FSIA, to have retroactive effect, retroactivity must be the “unequivocal and inflexible import of the terms and the manifest intention of the legislation.” Union Pac. R. Co., v. Laramie Stock Co., supra.

The FSIA does not contain a clear and unequivocal statement that it was intended to apply retroactively to transactions which predated 1952. Quite to the contrary, the language of the Act is expressly prospective, providing that ‘claims of foreign states to immunity should henceforth be decided by courts of the United States in conformity with the principles set forth in this chapter.” 28 U.S.C. § 1602. The prospective nature of the Act is further evidenced by the fact that Congress provided for a 90 day delay period in order to give adequate notice to foreign nations of the United States’ new policy of restrictive immunity. Foreign Sovereign Immunities Act of 1976, Pub.L. No. 94-583, § 8, 90 Stat. 2898 (1976).

In accordance with the plain language of the statute, the FSIA covers claims arising or accruing after its enactment. There being no language to the contrary, this is the obvious “import of the terms and manifest intention” of Congress.

Similarly, the legislative history of the FSIA provides no support for the position that the Act should be given retroactive application. Although the legislative history traces the historical evolution of the FSIA, there is a conspicuous absence of any reference to retroactive application of the Act. S.Rep. No. 94-1310, 94th Cong., 2d Sess. (1976); H.R.Rep. No. 94-1487, 94th Cong., 2d Sess. (1976), U.S.Code Cong. & Admin.News 1976, p. 6604.

At the time of the issuance of the bonds in 1911 up until the date of their maturity in 1951, China relied on the well-founded expectation that the then extant, almost universal doctrine of absolute sovereign immunity governed all interactions between her and the United States and the citizens of the two respective countries. Concomitantly, China had no apprehension of being haled into a court in the United States to answer for any default of the bond issue. Similarly, the predecessors in interest of the plaintiff bondholders class had no expectation of any right to bring an action in a court of the United States upon a default of the bond issue.

The law dictates that a statute shall not be retroactively applied to alter antecedent rights unless such is the unequivocal import of its terms or the manifest intention of the legislators. The Court concludes that neither the language of the FSIA nor its legislative history evince that it be retroactively applied; and to apply the FSIA in this action would clearly alter the antecedent rights of China.

Recent courts which have addressed this issue have reached a similar conclusion. In Amoco Overseas Oil Co. v. Compagnie Nationale Algerienne, 605 F.2d 648 (2nd Cir.1979) the Second Circuit declined to apply the FSIA retroactively finding that to do so would prejudice the antecedent rights of the parties. Subsequently, the Second Circuit squarely addressed the retroactive application of the FSIA with respect to subject matter jurisdiction in Corporación Venezolana de Fomento v. Vintero Sales, 629 F.2d 786 (2nd Cir.1980). There the Court found that the FSIA was not intended to retroactively confer subject matter jurisdiction. See also Ohntrup v. Firearms Center, Inc., 516 F.Supp. 1281 (E.D. Penn.1981).

Based on the foregoing discussion, the Court finds and concludes that the FSIA cannot be retroactively applied; and, accordingly, this action must be dismissed for want of subject matter jurisdiction. A separate order embodying this opinion shall issue.

      . Inasmuch as the question of retroactivity is dispositive, the Court finds it unnecessary to address the other issues which were also raised by China.

      . In the Spring of 1937, the government of the Republic of China offered to extend the date of the maturity of the bonds from June 15, 1951 until June 15, 1976. This arrangement, however, was not mutually agreed upon and its implementation was further impeded by the outbreak of the Sino-Japanese War in July of 1937.


author: FOREMAN, Chief Judge:

text:
    Amy N. DUENSING, a minor by her father and next friend, Clint W. DUENSING, and Clint Duensing, Individually, Plaintiffs, v. Michael L. TRIPP, Defendant. Michael L. TRIPP, Third-Party Plaintiff, v. Sherri DUENSING, Third-Party Defendant.
    Civ. No. 83-3350.
    United States District Court, S.D. Illinois.
    Oct. 29, 1984.

      Stephen M. Tillery, Kassly, Bone, Becker, Dix, & Tillery, P.C., Belleville, 111., for plaintiffs.
    John B. Gunn, Walker & Williams, P.C., Richard F. Nash, Gundlach, Lee, Eggmann, Boyle & Roessler, Belleville, 111., for defendant.
   MEMORANDUM AND ORDER

FOREMAN, Chief Judge:

Before the Court is third-party defendant’s Motion to Dismiss the third party action for contribution (Document No. 14). Clint Duensing brought this negligence action on behalf of his daughter Amy Duensing for damages incurred when an automobile driven by defendant Michael Tripp struck Amy. Defendant Tripp filed a third-party complaint seeking contribution against Sherri Duensing, Amy’s mother, alleging that Amy’s injuries resulted in part from Sherri’s negligent supervision of Amy. Sherri Duensing moves to dismiss the third-party complaint arguing that parental immunity precludes a third-party action for contribution against a parent. Both parties agree that this is a question of first impression in Illinois. Therefore, this Court is obliged to use its own best judgment in predicting what the Illinois Supreme Court would decide in the case. Amfac Mortgage Corp. v. Arizona Mall of Tempe, Inc., 583 F.2d 426 (9th Cir.1978). Cf Lamb v. Briggs, Mfg., A Div. of Celotex Corp., 700 F.2d 1092 (7th Cir.1983).

The sole issue to be determined herein is whether contribution may be sought under the pleadings from a parent of an injured minor plaintiff where said parent’s alleged negligent supervision contributed to the injuries. In Larson v. Buschkamp, 105 Ill.App.3d 965, 61 Ill.Dec. 732, 435 N.E.2d 221 (1982), the court faceJ a similar issue in that the contribution claim was based on the parent’s negligence in driving the car which defendant’s car struck. The Second District held that parental immunity was not a bar to the contribution action. However, the court specifically left open the question before this Court. The Larson Court stated:

In other jurisdictions where an allegation of negligent supervision by a parent either in a direct suit by a minor against a parent or in an action for contribution against a parent, the rule of parental immunity has been preserved____ However as this issue is not before us, we need only find that, under the pleadings as presented here, contribution may be sought from a parent of an injured minor plaintiff where the parent’s alleged negligence contributed to the minor’s injuries.

Id. 61 Ill.Dec. at 737, 435 N.E.2d at 226 (citations omitted).

Other jurisdictions which have addressed the issue before this Court are not in agreement. In Holodook v. Spencer, 36 N.Y.2d 35, 324 N.E.2d 338, 364 N.Y.S.2d 859 (1974), the Court of Appeals of New York, which had previously abolished parent-child immunity, held that there was nonetheless no parental liability either directly or for contribution for negligent supervision simply because there was no cognizable tort of negligent supervision. In Schneider v. Coe, 405 A.2d 682 (Del.1979), the Supreme Court of Delaware held that where parental control, authority, or discretion is involved, the rule of parental immunity must be preserved so as to bar a contribution claim. Likewise, in Pedigo v. Rowley, 101 Idaho 201, 610 P.2d 560 (1980), the Idaho Supreme Court held that parental immunity of the father barred third parties who were tortfeasors from seeking contribution. In Quest v. Joseph, 392 So.2d 256 (Fla.Dist.Ct.App.1980), the court held that the parent-child immunity was not a bar to a contribution claim against a parent for negligent supervision. In addressing Holodook, the Quest Court stated that the reason why there are no Florida child versus parent negligent supervision cases is not that there is no tort for negligent supervision, but that all such actions have been barred by the parental immunity. 392 So.2d at 260. In Middleton v. Village of Nichols, 114 Misc.2d 596, 452 N.Y.2d 157 (N.Y.Sup.Ct.1982), the Supreme Court of New York reaffirmed the holding in Holodook by stating that since a minor child has no cause of action against a parent for negligent supervision, a parent could not be held liable in contribution. However, in Aquaviva v. Piazzolla, 117 Misc.2d 581, 458 N.Y.2d 979 (1982), a New York court distinguished Holodook by holding that where a parent negligently entrusted a child with a dangerous instrumentality a contribution action would lie against the parent. Finally, in Miller v. Leljedal, 71 Pa.Commw. 372, 455 A.2d 256 (1983), the Pennsylvania Commonwealth Court held that since state law had long since recognized a parental duty to exercise reasonable care to protect children and to keep them from danger, a contribution action would lie against the mother for negligent supervision.

After a careful review of these cases, the Court believes that the proper approach is to first ascertain whether Illinois would recognize a tort of negligent supervision. The rationale for this approach is that under the Illinois Contribution Among Joint Tortfeasors Act, Ill.Ann. Stat. ch. 70, § 302 (Smith-Hurd Supp.1984-85), the right to contribution arises “where two or more persons are subject to liability in tort arising out of the same injury____” Id. Accordingly, one essential element of contribution is that the third-party defendant must be liable to the plaintiff for the same injury. See Germann v. Pekow, 531 F.Supp. 355, 356 n. 3 (N.D.Ill.1981). In the context of this case, the defendant may seek contribution from the mother of the plaintiff if the mother were liable to the child for the injury. Based on this rationale, Holodook and its progeny have taken the position that there can be no contribution because there is no cognizable tort of negligent supervision in New York to support the parent’s liability to the child.

The Court realizes that its attempt to determine whether Illinois would recognize a tort based on negligent supervision is hindered by the fact that in Illinois the parental immunity still bars an action by the child against the parent. Thus, in Illinois as in Florida, there are no child versus parent negligent supervision cases because they have been barred by the immunity. See Quest, 392 So.2d at 260. However, the Court must determine, absent the immunity, whether Illinois would recognize a child’s right to sue the parent for negligent supervision before it decides to lift the immunity as a bar to the contribution action. As a practical note, the Court also realizes that many of the policy reasons behind allowing a child to sue the parent for negligent supervision are the same reasons for lifting the immunity and allowing a defendant to seek contribution.

The Court is of the opinion that absent the immunity, Illinois would not recognize the tort of negligent supervision in this context. It reaches this conclusion by analyzing those areas in which negligent supervision has formed the basis of other torts.

The Courts have recognized actions by third parties against the parent for the torts of the child only in limited situations.

A parent is under a duty to exercise reasonable care so as to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child; and
(b) knows or should know of the necessity and opportunity for exercising such control.

Section 316 Restatement of Torts (Second). Illinois law is in accord. Cooper v. Meyer, 50 Ill.App.3d 69, 7 Ill.Dec. 916, 365 N.E.2d 201 (1977). See also Parental Responsibility Law, Ill.Ann.Stat. ch. 70, § 53 (SmithHurd Supp.1984-85). Additionally, parents can be liable to third parties for negligently supervising a child if the parent places a dangerous instrumentality in the child’s hands where the child is not familiar or which he is lacking in experience as to its operation. Rautbord v. Ehmann, 190 F.2d 533 (7th Cir.1951).

Thus, it is apparent that absent the intentional tort or dangerous instrumentality, Illinois does not recognize a third party’s claim against the parent based on the parent’s negligent supervision of the child. Therefore, it would appear unlikely that, absent the immunity, Illinois would recognize a child’s claim against the parent for negligent supervision. Although the duty involved in the above case is a duty to prevent harm to a third party by supervising the child, whereas the duty in the present case would be a duty owed to the child, the basis for either case is the supervision aspect. The Court is reluctant to hold that a parent owes his or her child a duty to proper supervision which, if breached, would support a tort action on behalf of the child, when the Illinois courts have failed to recognize that the parent owes the same duty to supervise the child to a third party.

Additionally, the Court is ever mindful of the practical concerns expressed in Holodook.

We can conceive of few, if any, accidental injuries to children which could not have been prevented, or substantially mitigated, by keener parental guidance, broader foresight, closer protection and better example. Indeed, a child could probably avoid most physical harm were he under his parents’ constant surveillance and instruction, though detriment more subtle and perhaps more harmful than physical injury might result. If the instant negligent supervision claims were allowed, it would be the rare parent who could not conceivably be called to account in the courts for his conduct toward his child, either by the child directly or by virtue of the procedures allowed by Dole [v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288],

324 N.E.2d at 343, 364 N.Y.S.2d at 866. Further, the Court agrees with the fears expressed in Holodook that an application of the reasonable man standard in such a context would be disasterous. The application of a standardized norm could “circumscribe the wide range of discretion a parent ought to have in permitting his child to undertake responsibility and gain independence.” Id. 324 N.E.2d at 346, 364 N.Y.S.2d at 870.

For these reasons, the Court holds that, absent the parental immunity, Illinois would not recognize a child’s action against the parent for negligent supervision. Therefore, a defendant cannot seek contribution against the child’s parent for negligent supervision. The Court feels obliged to emphasize again that it recognizes that for all practical purposes its discussion concerning the child’s right to sue the parent for negligent supervision is theoretical rhetoric since the immunity bars any action by the child against the parent. However, the Illinois Legislature, in enacting the contribution statute, has clearly indicated that contribution is permitted only where a third-party defendant is liable to the plaintiff for the same injury.

Accordingly, the third-party defendant’s Motion to Dismiss the Third-Party Complaint (Document No. 14) is hereby GRANTED. Third-Party Defendant Sherri Duensing is hereby DISMISSED.

IT IS SO ORDERED.


author: JOSEPH H. YOUNG, District Judge.

text:
    Mary Ellen RING v. RIVER WALK MANOR, INC.
    Civ. No. Y-84-504.
    United States District Court, D. Maryland.
    Oct. 29, 1984.

      John E. Bloxom, Pocomoke City, Md., for plaintiff.
    Norman R. Buchsbaum, and Melissa M. Moore, Baltimore, Md., for defendant.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

Plaintiff, Mary Ellen Ring, filed suit in the Circuit Court for Wicomico County, Maryland, alleging that she had been wrongfully discharged by the defendant, River Walk Manor, Inc., in violation of her constitutional rights of free speech and free association. Defendant removed the case to federal district court, and a motion to remand was denied because a “clear reading of the complaint indicates that the plaintiff seeks relief under appropriate federal statutes and the federal constitution.” Defendant has now moved to dismiss this action, first, because the plaintiff is, in reality, alleging “unfair labor practices” prohibited by the National Labor Relations Act, §§ 8(a)(1) and 8(a)(3), and within the exclusive jurisdiction of the National Labor Relations Board, and because the plaintiff has not stated a claim for a violation of First Amendment rights because she does not allege state action.

Plaintiff has not attempted, nor does she wish, to state a claim for unfair labor practices. Plaintiff has rightly pointed out that she has not alleged that she was forming, joining, or assisting a labor organization or that River Walk fired her to interfere with any of those activities. Her only allegation is that she was wrongfully discharged for speaking with a former employee of River Walk and for refusing to talk to her supervisor about the incident without her attorney present. The former employee was apparently a Union organizer but there is nothing else to indicate that the action was Union related. In the cases cited by defendant in its motion to dismiss, the plaintiffs stated some claim based on interference with Union activities or harassment because of participation in Union activities. See, e.g., Steckman v. Cumberland Nursing and Convalescent Center, Civil No. HM 82-2661 (Murray, July 15, 1983), United Credit Bureau of America, Inc. v. N.L.R.B., 643 F.2d 1017 (4th Cir.1981). In one case cited by the defendant to support the proposition that federal court jurisdiction was preempted by N.L.R.B. jurisdiction, Sears, Roebuck and Co. v. Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978), the Court actually held that only when the controversy presented to a state court is identical to that which could have been presented to the Labor Board does the state court’s exercise of jurisdiction involve a risk of interference with the unfair labor practice jurisdiction of the Board. In Farmer v. Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977), the Court explained that “[o]n balance, we cannot conclude that Congress intended to oust state court jurisdiction for actions for tortious activity such as that alleged in this case [intentional infliction of emotional distress],” 430 U.S. at 304-05, 97 S.Ct. at 1065-66, especially where different elements of proof would be required and damages are requested.

Plaintiffs claim here is not identical to the claim which she could present to the N.L.R.B. Ring claims that she was wrongfully discharged in violation of her First Amendment rights. She admits that she could not prove any unfair labor violation, has no evidence of any labor-related motive in her firing, and would not be subject to the prohibitions in §§ 8(a)(1) and 8(a)(3) because she is a supervisor. She is also seeking damages for lost wages, mental pain and suffering, indignity, humiliation, embarassment and insult, which the N.L.R.B. could not award. It would be manifestly unfair to contrive an unfair labor practice claim where plaintiff has denied its existence,. require her to prove a claim which she never made and admits she could not prove, and then dismiss that claim for her failure to do so. See Commonwealth Land Title Insurance Co. v. Berks Title Insurance Co., 508 F.Supp. 921, 922 (E.D. Pa.1981) (denying defendant’s suggestion that “notwithstanding plaintiff’s disavowal of any intent to state a cause of action under RESPA, the Court should contrive one and then dismiss it. The mere statement of the proposition provides its own refutation. If the Court lacks jurisdiction, it must remand the matter to state court.”) The plaintiff has only attempted to assert that she was wrongfully discharged in violation of her First Amendment rights, and the Court will treat her complaint as stating only that claim.

Defendant asserts that even if the plaintiff’s claim is treated as a claim for violation of the First Amendment, it must be dismissed for failing to state a claim because there is no state action. It is axiomatic, as defendant points out, that governmental action is required in order to state a claim for deprivation of First Amendment rights. “The First and Fourteenth Amendments are limitations on state action, not on action by the owner of private property used for private purposes.” Central Hardware Co. v. N.L.R.B., 407 U.S. 539, 547, 92 S.Ct. 2238, 2243, 33 L.Ed.2d 122 (1972). See also Buckley v. American Federation of Television and Radio Artists, 496 F.2d 305, 309 (2d Cir. 1974). Plaintiff has failed, in her declaration, to assert or imply any state action.

The defendant is a privately owned, privately run nursing home. Actions by this private employer are not state actions prohibited by the First and Fourteenth Amendments. Nor has the plaintiff alleged any activity by which the state government has placed itself in the activities of the nursing home, thereby imbuing private action with a governmental character. Therefore, insofar as the plaintiff has alleged deprivation of her constitutional rights by River Walk’s action in firing her, her complaint must be dismissed for failure to state a claim.

Plaintiff has belatedly asserted, however, that she had no intention of stating a constitutional claim but was simply asserting a claim for wrongful discharge under the law of the state of Maryland. The tort of wrongful discharge in Maryland applies when “the motivation for the discharge contravenes some clear mandate of public policy.” Adler v. American Standard Cory., 291 Md. 31, 47, 432 A.2d 464 (1981). Plaintiff now claims that the discharge by the defendant was against the public policy of the state of Maryland in that it violated the plaintiff’s right to free speech and her right to associate with whom she pleases outside of her employment. At first glance, plaintiff seems to allege that Maryland public policy has merely incorporated federal law. If so, it would seem that some form of government action would still be required.

It is possible, however, that a state court could find that there is a public policy in Maryland against the violation of free speech rights by private individuals. In Adler, the Maryland Court of Appeals recognized that it was not confined to “legislative enactments, prior judicial decisions or administrative regulations when determining the public policy of this State.” Adler, 291 Md. at 45, 432 A.2d 464. See also Adler v. American Standard Corp., 538 F.Supp. 572, 578 (D.Md.1982) (plaintiff may rely on federal law as the source of the public policy contravened by plaintiffs discharge). If there is a discernible Maryland public policy requiring private individuals to respect other individuals’ rights of free speech, plaintiff may be able to assert her claim of wrongful discharge in the state court.

Plaintiff’s first count is dismissed with prejudice insofar as it attempts to state a cause of action for a violation of First Amendment. rights. However, insofar as the first claim is a claim of wrongful discharge in contravention of Maryland public policy, it is remanded for consideration by the Circuit Court for Wicomico County.

Plaintiff originally filed this action in state court, alleging wrongful discharge and breach of contract. Defendant has moved to have both claims dismissed outright, requiring the plaintiff to incur the expense of refiling her remaining claims in state court. When a claim which is the basis for removal is dismissed, as is the situation here, the District Court has discretion to either retain jurisdiction and decide the case on the merits, or to remand the case to the state court from whence it came. Duncan v. Furrow Auction Co., 564 F.2d 1107, 1108 n. 1 (4th Cir.1977); Watkins v. Grover, 508 F.2d 920 (9th Cir. 1974). In Naylor v. McGrath, 585 F.2d 557 (2d Cir.1978), the Second Circuit held that it was an abuse of that discretion not to remand a case, which had been removed to federal court to adjudicate a federal claim which was later dropped, when the remaining claims involved questions of unclear state law. The Court found that in such a situation, the state court was the proper forum for deciding those remaining claims.

There are questions of unclear state law in this case, both in deciding the public policy of the state for the plaintiff’s wrongful discharge claim and in deciding her claim for an alleged breach of contract. Defendant has attempted to distinguish Naylor and argue for an outright dismissal by arguing that Naylor involved the interpretation of a new: state statute, while this case is based on a claim recently recognized only by the courts. This is a distinction without a difference. When state law is unclear, the proper course for the federal court to follow is to remand the case to the state court to allow that court to interpret its own law. A federal court adjudication on the merits would not be appropriate here. A dismissal without prejudice would also be inappropriate. Plaintiff filed her case in state court originally and should be allowed to return there without the additional time and expense of refiling her claims.

Plaintiff’s motion to remand was denied improvidently and without sufficient facts available to the Court. Accordingly, for reasons stated herein, the marginal order entered June 11, 1984, will be stricken on the Court’s motion.


author: KANE, District Judge.

text:
    John TRUJILLO, et al., Plaintiffs, v. Margaret M. HECKLER, etc., Defendant.
    Civ. A. No. 82-K-1505.
    United States District Court, D. Colorado.
    Oct. 29, 1984.

      Linda J. Olson, Michael J. Steiner, Legal Aid Soc. of Metropolitan Denver, Daniel M. Taubman, Colorado Coalition of Legal Service Programs, Denver, Colo., William Redak, Jr., Redak & Brantz, Longmont, Colo., Carol Glowinsky, Legal Aid & Defender Program, John Whitehouse Cobb, Roper, Lief, Mains & Cobb, Boulder, Colo., R. Eric Solem, Pikes Peak Legal Services, Colorado Springs, Colo., Bernard A. Poskus, Colorado Rural Legal Services, Grand Junction, Colo., John G. Detmer, Erickson, Holmes, Nicholls, Kusic & Sussman, Denver, Colo., for plaintiffs.
    Robert N. Miller, U.S. Atty., John R. Barksdale, Asst. U.S. Atty., Denver, Colo., for defendant.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This is the third order I have entered in this case on the issue of attorney’s fees. Most recently, I granted plaintiffs motion for attorney’s fees under subsection (b) of the Equal Access to Justice Act, 28 U.S.C. § 2412. See 587 F.Supp. 928 (D.Colo. June 29, 1984). Attorney’s fees were granted by incorporating the civil rights attorney fee statute, 42 U.S.C. § 1988 into the EAJA. This case is now before me on defendants motion for relief from the judgment pursuant to Rules 59(e) and 60(b), Fed.R.Civ.P. and for a determination of the amount of fees to be awarded.

The motion for relief from the judgment is denied. The Memorandum and Order of June 29, 1984 was, and continues to be, well supported in its rationale, by the legislative history of the EAJA and the interpretation of that statute y other courts. Defendant has presented no new arguments in support of her motion.

Contrary to the defendant’s suggestion, the level of fees awarded is governed by the provisions of § 1988 and not subsection (d) of the EAJA. Fees in this case were specifically denied under subsection (d) and instead are awarded as required by the statute to the same extent as would be awarded to any other party under § 1988. See 582 F.Supp. 701 (D.Colo.1984). Thus, for example, hourly rates are not circumscribed by the subsection (d) $75 limit, but should be awarded “a rate of compensation for the hours reasonably expended ... by lawyers of comparable skill and experience practicing in the area in which the litigation occurs____” Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir.1983). I need not elaborate upon the standard for reviewing fee applications as it has been articulately stated earlier. See Ramos v. Lamm, supra; Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Blum v. Stenson, — U.S.-, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Brewer v. Southern Union Co., No. 83-F-1174, Slip Op. (D.Colo. September 21, 1984). Basically, I need examine the appropriateness of the plaintiffs’ counsels’ hourly rate and hours expended. Plaintiff seek neither compensation for expenses nor a fee enhancement; as such, I will not consider these issues.

A. Hourly Rate

As noted, the EAJA $75 fee ceiling is inapplicable in fee awards under subsection (b). Plaintiffs’ have submitted requests for compensation for seven different attorneys whose billing rates range from $75 to $125 per hour. These rates are adequately supported by affidavits documenting the experience of the attorneys and the rates charged by comparable private sector attorneys working on similar cases. I am cognizant of the fact that this litigation involved complex legal and procedural issues which were admirably handled by plaintiffs counsel in their representation of a class consisting of thousands of disabled individuals dependent upon social security benefits. I find that the hourly rates requested are reasonable and well within the community norm.

There is, however, a discrepancy in the hourly rates requested for two attorneys between the original application for fees filed January 12, 1984 and the Response to Defendant’s Objection to the fee requests filed August 22, 1984. In the first request Linda Olson sought fees at $100 per hour and Daniel Taubam sought fees at $100 per hour. In the second request, her rate decreased to $90 per hour and his rate increased to $110 per hour. Inasmuch as these fees are to be paid by the opposing party in contravention to the general American rule, plaintiffs will be bound by the lower of the two requests.

The hourly rates to be charged are then $90 for Linda Olson, $100 for Eric Solem and Daniel Taubam, $75 for Jon Nicholls, Bernie Poskus and John Detmer and $125 for John Whitehouse Cobb.

B. Hours Expended

I have examined the contemporaneous time records submitted by plaintiffs’ counsel to determine the reasonableness of the hours expended. The defendant argues that the plaintiffs’ attorneys time was often duplicative and overlapping. Moreover, she suggests that many of the items billed, such as for travel time, are not properly compensable.

This was a complex case with many actors and parties. Resolution of the issues, particularly at the early stages, before class certification, required the work of several attorneys to insure the proper coordination of the parties and strategy. As the case proceeded, however, numerous plaintiffs’ lawyers were not required to rehash memos and brief'’ or to attend negotiating sessions with the defendant’s attorneys. Daniel Taubman’s hours, for example, consisted largely of review of and comment upon the work of other attorneys and providing additional support to the work of Linda Olson and Erie Solem.

Linda Olson was lead counsel for the plaintiffs. Her atténtion was required for most all of the work done by plaintiffs team. It was her duty to coordinate the actors and approve all final work product. Her time was not duplicative and should be counted in total, with a few exceptions.

First, plaintiffs were not the prevailing party on the motion for a fee award filed under the theory of subsection (d) of the EAJA. Fees for time spent on this motion are not recoverable. Approximately 9.8 hours of Olson’s time was billecf to this task and should not provide the basis of an award. See Ramos v. Lamm, supra, at 556. Time expended in securing fees under subsection (b), where the plaintiffs prevailed, is compensable under § 1988 and here. See Love v. Mayor of City of Cheyenne, Wyoming, 620 F.2d 235, 237 (10th Cir.1980). I realize that much of the effort expended on the subsection (d) application carried over to the second fee request. But plaintiffs’ efforts in filing two separate motions for attorney’s fees were duplicative and wasteful. As such, no award is granted for time expended on the first fee application.

Second, defendant argues that plaintiffs cannot recover for approximately 47 hours of Olson’s time spent preparing for and arguing before the Social Security Administration. Had the plaintiffs prevailed in this case on dispositive issues, clearly before the Social Security Administration then plaintiffs could have collected fees for such efforts. The earlier and subsequent administrative hearings could be considered to constitute part of the plaintiff’s remedy for wrongful denial of social security benefits. See, e.g., New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980). In this case, however, the overall merits of each claimant’s case was not reviewed. Rather, what was considered was the standard of review employed by the Social Security Administration. In essence then, the administrative proceedings here constituted part of the wrong of which plaintiffs complained and not simply a lower forum for resolving claims. Thus, plaintiffs’ claims which give rise to the fee award would not be ripe until after administrative determination. See Venuti v. Riordan, 702 F.2d 6, 9 (1st Cir.1983). Moreover, because the specific aspects of each individuals’ claim must be considered by the Social Security Administration again, it is not clear that plaintiffs were the prevailing party on the final determination of benefits. They certainly were not the prevailing party on final determination in this tribunal as these issues were never examined. In that fee awards under subsection (b) of the EAJA are discretionary, I find that an award of fees for representation of individual claimants before the Social Security Administration would be inappropriate. Such proceedings are only ancillary to the issues presented in the motion for partial summary judgment and the motion for a permanent injunction on which the plaintiffs prevailed. Accordingly, 47 hours of Olson’s time are deducted. She is not precluded by this opinion and order from recovering fees in each individual claim in which she represents the claimant before the Social Security Administration in accordance with its statutory scheme. Also unrelated to the specific aspects of this case are 68.65 hours spent by Olson on the telephone with clients and in preparation of specific social security cases. This time is not allowed. Time spent working on appeals of this case, as yet unresolved, and time spent in general meetings with disabled persons are also extraneous and not allowed. Thus, another five hours is deducted.

Defendant argues that time spent in court directed negotiations to arrive at an agreed upon injunctive order is not recoverable by plaintiffs. Such time, however, was directly related to the issues and problems in this ease and aided in the resolution of the case. Such time provides the basis of an award of fees. See Environmental Defense Fund v. Environmental Protection Agency, 672 F.2d 42, 56-57 (D.C.Cir. 1982).

Eric Solem appears to have been the second lawyer working on plaintiffs case. Much of his time was spent in first hand research and drafting of court papers. Moreover, he was present at many of the hearings and negotiating sessions involved in the case. Contrary to the defendant’s assertions, Solem’s time was not duplicative or wasteful. In most instances the defendant was represented by at least two attorneys. This is a good guide to the number of lawyers required by the plaintiffs. See Ramos v. Lamm, supra, at 554. Thus, as with Olson, Solem’s time, with a few exceptions was reasonable and should be fully compensated. This compensation includes time expended traveling to and from Denver for hearings. Id. at 559. Solem’s fee request is reduced by 4.0 hours spent preparing plaintiffs’ fee request under subsection (d) of the EAJA and 4.25 hours spent representing individuals before the Social Security Administration.

Eric Taubman was essentially the third attorney working on the ease. Much of his time was spent in an advisory capacity, reviewing and commenting on the work of others. These efforts are duplicative and non-eompensable. Id. at 554. I realize that the perspective and advice of another attorney can be useful in complex litigation such as this. I account for this by not deducting time from Olson’s and Solem’s hours spent in consultation with Taubman. Moreover, some of Taubman’s time, particularly in preparing papers for the EAJA subsection (b) application was spent on direct research and drafting. This time is accordingly charged to the defendant as part of the fee award. In total, Taubman’s time is reduced by 94.7 hours.

Attorneys Nicholls, Poskus and Determer represented individuals who intervened in this action. Much of their time was spent representing their individual clients before the Social Security Administration and cannot form the basis of the award. The rest of their time was only ancillary to the main issues in the lawsuit for which fees have been awarded or duplicative of the efforts of others. No fees are awarded for the time expended by Nicholls, Poskus and Detemer.

John Whitehouse Cobb was apparently brought in during the final hours of this suit to provide additional expertise and support. I find such expenditures of time and effort to be reasonable. Howevewr, 21.4 hours of Cobb’s time were spent on the fee application in which plaintiffs did not prevail. Fees are disallowed for these efforts.

In the final analysis fees are awarded as presented in the following table.

Attorney Rate/ Hour Hours Requested Hours Allowed Total
Olson $ 90 729.05 598.60 $53,874.00
Solem 100 257.75 249.50 24,950.00
Taubman 100 192.50 97.80 9,780.00
Poskus 75 11.90 -0--0-
Nicholls 75 15.75 -0--0-
Detemer 75 21.75 -0--0-
Cobb 125 42.10 20.70 2,587.50
1270.80 966.60 $91,191.50

In overview, a total expenditure of 966.60 hours and a total fee award of $91,-191.50 is reasonable, if not conservative, for a case involving the compexity and detail of this one. Accordingly, the plaintiffs are awarded attorney’s fees in the amount of $91,191.50.

IT IS FURTHER ORDERED that defendants motion for relief from the order awarding fees is denied.

      . Other opinions in this case include the grant of class certification and recognition of jurisdiction, 558 F.Supp. 1058, February 17, 1983, a grant of plaintiffs’ motion for partial summary judgment, 569 F.Supp. 631, August 16, 1983; a grant of plaintiff's motion for a permanent injunction, December 15, 1983 and a denial of attorney’s fees, 582 F.Supp. 701, March 16, 1984.

      . Defendant cites numerous cases standing for the proposition that travel expenses and fees for representation before the Social Security Administration are not compensable under subsection (d) of the EAJA. Such analysis is inapposite.

      . Attorney's fees are not allowed for representation before administrative agencies in fee awards under subsection (d) of the EAJA. See, e.g., Guthrie v. Schweicker, 718 F.2d 104, 108 (4th Cir.1983).


author: BUA, District Judge.

text:
    TABCOR SALES CLEARING, INC., Plaintiff, v. UNITED STATES of America, Defendant.
    No. 75 C 2401.
    United States District Court, N.D. Illinois, E.D.
    Oct. 29, 1984.
    See also 7 Cir., 544 F.2d 1373; D.C., 471 F.Supp. 436; D.C., 95 F.R.D. 534.
    Shelly Waxman, Robert K. Mayer, Shelly Waxman & Associates, Chicago, 111., for plaintiff.
    Thomas R. Jones, Tax Division, Dept, of Justice, Washington, D.C., for defendant.
   MEMORANDUM AND ORDER

BUA, District Judge.

Before the Court is defendant’s motion for summary judgment in this action by plaintiff for attorneys’ fees and costs. Plaintiff has also filed a motion to strike portions of defendant’s motion for summary judgment. For the reasons stated herein, defendant’s motion for summary judgment is granted in part and denied in part, and plaintiff’s motion to strike is denied.

I. FACTS

This action is one for attorneys’ fees and costs arising out of a motion by plaintiff Tabcor Sales Clearing, Inc. (“Tabcor”). The underlying dispute originated as a tax refund suit by Tabcor in which the United States counterclaimed to recover an unpaid portion of a tax assessment. Through Section 530 of the Revenue Act of 1978, Public Law 95-600, Congress settled the issue in the taxpayer’s favor; thus the government consented to a judgment and its counterclaim was dismissed in an order of December 8,1978, in which the Court reserved the question of attorneys’ fees.

In February of 1980, Tabcor complained that the Government still had liens outstanding even though final judgment had been entered. The Court denied Tabcor’s motion for sanctions in an unpublished order entered on the docket on March 20, 1980. In the order, the Court accepted “the respondent’s position that said liens were placed solely because of bureaucratic errors.” The liens were released immediately following the Court’s order.

Finally, on April 25, 1980, over sixteen months after entry of judgment, Tabcor’s counsel filed a motion for determination and entry of judgment for reasonable attorneys’ fees and costs. The claim was initially for $191,550, based upon 12,031 hours of work of which plaintiff’s present counsel claims 861 hours. On March 23, 1981, the Court issued an order awarding Tabcor a total of $5,000 in attorneys’ fees and costs. Tabcor appealed the order to the Seventh Circuit Court of Appeals and the U.S. cross-appealed.

On December 2, 1983, the Seventh Circuit decided that: (1) the district court should not have awarded costs and attorneys’ fees based solely on the size of the counterclaim; (2) the district court should consult the earlier unpublished opinion regarding the outstanding tax liens and give that opinion and its surrounding circumstances such weight as is required; (3) the district court had discretion to allocate expenses of litigation between the complaint and the counterclaim; and (4) if Tabcor was entitled to attorneys’ fees at all, that an award of $5,000 previously made by the district court was not an abuse of discretion and was affirmed. Tabcor Sales Clearing, Inc. v. United States, 723 F.2d 26 (7th Cir.1983).

This motion for summary judgment seeks to determine the remaining issues which have been remanded by the Court of Appeals.

II. DISCUSSION

1. Attorneys’ Fees Under the Equal Access to Justice Act

The Equal Access to Justice Act (“EAJA”) permits an award of attorneys’ fees to litigants who prevail in actions against the United States, unless the position of the United States was substantially justified or circumstances indicate that'an award of attorneys’ fees would be unjust. 28 U.S.C. § 2412(d)(1)(A), Pub.L. No. 96-481, § 208, 94 Stat. 2330 (1980). The EAJA became effective on October 1, 1981, and by its terms applies ^nly to civil actions “pending on, or commenced on or after” that date. The EAJA amends the Civil Rights Attorneys’ Fee Awards Act of 1976 (the “Act”), 42 U.S.C. § 1988, by deleting the language providing for recovery of attorneys’ fees in government-instituted tax suits. 42 U.S.C. § 1988 (West Supp.1981); see also United States for Heydt v. Citizens State Bank, 668 F.2d 444, 446 (8th Cir.1982). The legislative history of the EAJA states that “[t]he deletion of this section is required because it is intended that cases arising under the internal revenue laws be covered by the provisions of 2412(d) of title 28 as added by this bill.” H.R.Rep. No. 96-1418, 96th Cong., 2d Sess. 19, reprinted in [1980] U.S.Code Cong. & Ad.News 4953, 4998 (House Report).

The threshold question to confront is whether the present action meets the statutory requirement of the EAJA. Section 208 of the EAJA provides that it shall apply to “any civil action or adversary adjudication described in section 2412 of title 28, United States Code, which is pending on, or commenced on or after” October 1, 1981. A party contending for attorneys’ fees under the EAJA must establish that the action was pending on this date before the EAJA becomes applicable. Nichols v. Pierce, 740 F.2d 1249, 1255 (D.C.Cir.1984). The Seventh Circuit Court of Appeals has held that, where the only aspect of the case was an appeal from the denial of an award of attorneys’ fees, the case was not pending for purposes of the EAJA, which therefore did not apply. Commissioners of Highways of Towns of Annawan v. United States, 684 F.2d 443, 444-445 (7th Cir. 1982); Berman v. Schweiker, 713 F.2d 1290, 1301 (7th Cir.1983); see also Nichols v. Pierce, supra.

In Commissioners of Highways, the district court denied an application for attorneys’ fees on March 5, 1981 and plaintiffs appealed. The Seventh Circuit found that the only matter pending in the case was the appeal from the denial of attorneys’ fees by the district court. Id. at 444. This matter was insufficient to invoke coverage of the EAJA.

In the present case, this Court granted the plaintiff’s motion for attorneys’ fees and costs in the amount of $5,000 on March 23, 1981. Both sides appealed the award and the Seventh Circuit rendered its opinion on December 2, 1983. Tabcor Sales Clearing, Inc. v. United States, supra. The only matter pending on October 1, 1981 was an appeal of the district court’s award of attorneys’ fees. Therefore, since this matter was not pending on October 1, 1981 for purposes of the EAJA, it will not apply here.

Plaintiff offers two cases for the proposition that the Court should apply the EAJA as the law in effect at the time it renders its decision. United States for Heydt v. Citizens State Bank, 668 F.2d 444, 446 (8th Cir.1982); Knights of the KKK v. East Baton Rouge, 679 F.2d 64 (5th Cir.1982), vacated 454 U.S. 1075, 102 S.Ct. 626, 70 L.Ed.2d 609 (1981). In Heydt, the Eighth Circuit Court of Appeals applied the general rule that an appellate court must apply the law in effect at the time it renders its decision unless there is some indication to the contrary in the statute or unless manifest injustice would result. 668 F.2d at 446. The Heydt court held that no manifest injustice would result from the application of the EAJA, notwithstanding the October 1, 1981 effective date. The Eighth Circuit appears to have ignored its own general rule when it ignored the October 1, 1981 effective date as a threshold statutory requirement for the EAJA’s application. As seen above, the Seventh Circuit chooses to give full effect to the plain meaning of the October 1, 1981 effective date. Therefore, the Heydt case law does not apply to this case.

In Knights of the KKK, the Supreme Court’s action in vacating the opinion of the Fifth Circuit Court of Appeals is inconclusive here. While the order vacating the Fifth Circuit opinion mentions the EAJA, it expresses no opinion as to the EAJA’s application in that specific case. Therefore, the order in the case of Knights of the KKK is not controlling in this ease.

2. Attorneys’ Fees Under 42 U.S.C. § 1988

The Civil Rights Attorneys’ Fee Awards Act of 1976 provides in pertinent part that “... in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of a provision of the United States Internal Revenue Code, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneys’ fee as part of the costs.” 42 U.S.C. § 1988 (1976). The EAJA repealed the above language insofar as it applied to government-instituted tax suits. However, since the EAJA (Pub.L. 96-481) did not become effective until October 1, 1981, any case completed before the effective date may invoke the pre-1980 amendment language of § 1988 as set out above. See 42 U.S.C.A. § 1988, Historical Note p. 155 (West 1981).

Where, as here, the government has responded with a counterclaim in a tax refund suit instituted by a taxpayer, there has been held to be an action “by or on behalf of the United States,” and § 1988 is applicable. Holcomb v. United States, 622 F.2d 937, 942 (7th Cir.1980). Although § 1988, by its terms, leaves the decision to award attorneys’ fees to the discretion of the trial court, the courts have held that attorneys’ fees are appropriate only where the government’s action was instituted in bad faith or was frivolous, harassing, or vexatious.” Tabcor Sales Clearing, Inc. v. United States, 723 F.2d 26, 27 (7th Cir. 1983) (citing Holcomb, supra). In its opinion remanding this action in Tabcor Sales, supra, the Seventh Circuit found that the filing of the government’s counterclaim in itself was not unreasonable, vexatious or in bad faith and therefore could not be the sole grounds for an award of attorneys’ fees under § 1988. Id. at 28; see also United States v. Rogers, 649 F.2d 1117, 1128 (5th Cir.1981), rev’d on other grounds, 461 U.S. 677, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983). The Court in Tabcor Sales directed this Court to make a finding as to whether the government’s true motive for the excessive computation on its counterclaim was to punish Tabeor’s refusal to waive the statute of limitations for its 1970 records. The Court finds that there is a genuine issue of material fact regarding the government’s motive behind the filing of its counterclaim. Therefore, defendant’s motion for summary judgment on the issue of bad faith is denied.

The government also seeks summary judgment limiting the amount of attorneys’ fees and costs, if appropriate, to the $5,000 award previously determined by the Court. The Seventh Circuit in Tabcor Sales, supra, concluded that “... should the district court conclude on remand that Tabcor has established a right to costs and fees, we find, as explained below, that the award of $5,000 was not an abuse of discretion and should be affirmed.” 723 F.2d at 29. In its explanation, the Seventh Circuit concluded that this Court properly allocated fees and costs between the complaint and the government’s counterclaim. Therefore, defendant’s motion for summary judgment to limit the amount of attorneys’ fees and costs to $5,000 is granted. In addition, the Court finds that the issues of fees relating to the complaint and of fees relating to the counterclaim should be sharply drawn.

Therefore, only issues regarding fees relating to the counterclaim, i.e. the government’s motive in filing it, are proper for the trier of fact in this case.

Finally, the Court finds that there is a genuine issue of material fact regarding the government’s failure to remove its tax liens on Tabcor’s property. This issue may have a bearing on the government’s conduct in a bad faith determination. In addition, the unpublished order contained in the docket on March 20, 1980 fails to develop enough facts on this issue for the Court to conclude that there is no genuine issue of material fact regarding the government’s failure to remove the tax liens.

CONCLUSION

Defendant’s motion for summary judgment is granted in pa„' and denied in part. The motion is granted on the issue of the amount of attorneys’ fees and costs which may be granted to plaintiff. This amount is limited to $5,000. In addition, the motion is granted insofar as it seeks to limit the triable issues to fees relating to the government’s counterclaim. The motion is denied on the issues of the bad faith determination in the counterclaim’s filing and the failure to lift the tax liens.

IT IS SO ORDERED.


text:
    Orlando PARADISE, Plaintiff, v. Richard DeROBERTIS, et al., Defendants.
    No. 83 C 9196.
    United States District Court, N.D. Illinois, E.D.
    Oct. 29, 1984.
    Orlando Paradise, pro se.
    Neil F. Hartigan, Atty. Gen. by John A. Ward, Asst. Atty. Gen., Chicago, 111., for defendants.
   ORDER

BUA, District Judge.

Plaintiff, an inmate at Stateville Correctional Center, brings this pro se action pursuant to 42 U.S.C. § 1983 seeking injunctive, declaratory, and monetary relief for the alleged deprivation of his constitutional rights. Named as defendants are Richard DeRobertis and Michael O’Leary, respectively Warden and Assistant Warden at Stateville Correctional Center at the time plaintiff’s claims arose. Before the Court is defendants’ motion to dismiss the complaint. For the reasons that follow, the motion is denied.

According to plaintiff’s allegations, he personally informed defendants that, due to his young age (twenty-three), slight build, and noninvolvement with gangs, he feared attack by other prisoners upon his release from segregation. Plaintiff also showed defendants a threatening letter he had received from other inmates. Defendants subsequently transferred plaintiff from segregation to Unit H. Approximately one week later, he was threatened with harm unless he paid “protection” money or provided sexual favors. Plaintiff reported these threats to defendants, but they did not respond.

The following week, plaintiff was attacked while enroute to the dining hall. Although he was hurt, he did not report the incident because his assailants warned him of worse beatings in the future if he were to do so. A week later, plaintiff suffered a second attack, this time in his cell. He does not know the identities of his attackers because they wore hoods which covered their faces. At the time of filing this action, plaintiff again resided in segregation (apparently as a disciplinary sanction for his possession of a weapon he had fashioned for protection) and again had communicated to defendants his belief that he would be in danger when removed from segregation.

On the basis of these allegations, plaintiff charges defendants with violating his rights under the Eighth and Fourteenth Amendments by failing to adequately protect him. Defendants contend that plaintiff has failed to state a claim upon which relief may be granted.

A prisoner has an Eighth Amendment right to receive reasonable protection from harm inflicted by other inmates. Lit-tie v. Walker, 552 F.2d 193, 197 (7th Cir. 1977), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 530 (1978). While the mere inadvertence or negligence of a prison official is insufficient to state an Eighth Amendment claim under § 1983, “deliberate indifference ‘[r]egardless of how evidenced’ — either by actual intent or recklessness” will support a cause of action. Little, 552 F.2d at 198 n. 8 (quoting from Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976)). See also Walsh v. Brewer, 733 F.2d 473, 476 (7th Cir.1984). Furthermore, in order for liability to arise under § 1983, a defendant’s direct personal responsibility for the claimed violation of a constitutional right must be established. Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir. 1981).

Defendants in the instant case contend that plaintiff has failed to allege the requisite personal involvement of the defendants. The Court disagrees. In West v. Rowe, 448 F.Supp. 58 (N.D.Ill.1978), an inmate, while in protective custody at Stateville, wrote several letters to prison officials indicating his fears that his life was in danger. These requests for help went unanswered, and, thereafter, plaintiff was stabbed. The Court held that the inmate had stated an Eighth Amendment claim against those administrators to whom he had written for unreasonably failing to protect him from violent assault after notice of that danger. In the present case, plaintiff allegedly personally informed defendants of his concerns prior to his removal from segregation and again shortly before the first attack. In light of West, the Court finds that defendants’ alleged failure to take any precautions after actual notice of plaintiff’s security needs constitutes personal involvement and ultimately may demonstrate deliberate indifference to his safety-

Defendants also argue that the complaint is insufficient to state a cause of action under § 1983 because it is unsupported by specific facts, such as the dates of the attacks and the identities of the assailants. The lack of these particulars, however, does not warrant dismissal at this time.

With respect to the dates of the attacks, plaintiff does indicate that the first one occurred two weeks after defendants transferred him from segregation to Unit H and the second took place one week after the first. It would appear that the date of transfer is the type of information contained in prison records and, as such, could be obtained through discovery. With the date of transfer, the approximate dates of the attacks may be calculated.

Furthermore, plaintiffs inability to name his attackers does not render the complaint insufficient to state a claim against defendants for failure to provide reasonable protection. Plaintiff has alleged that defendants took no action whatsoever despite actual knowledge of threats to his life. If true, the allegation would support a finding of deliberate indifference on the part of defendants and is sufficient to withstand defendants’ motion to dismiss.

Accordingly, the Court denies defendants’ motion to dismiss. Plaintiff’s motion for leave to file amended complaint is granted. Defendants are ordered to answer or otherwise plead to the amended complaint within 10 days of entry of this order.

IT IS SO ORDERED.


text:
    Maurice JOHNSON, Plaintiff, v. Michael LANE, et al., Defendants.
    No. 83 C 9404.
    United States District Court, N.D. Illinois, E.D.
    Oct. 29, 1984.
    Maurice Johnson, pro se.
    Neil F. Hartigan, Atty. Gen. by Kevin Patrick Connor, Asst. Atty. Gen., State of 111., Chicago, 111., for defendants.
   ORDER

BUA, District Judge.

Plaintiff, formerly incarcerated at State-ville Correctional Center, brings this pro se action pursuant to 42 U.S.C. § 1983. Plaintiff charges six prison employees with violation of his constitutional rights in connection with the issuance of an order disapproving plaintiff’s wife and another individual as visitors. Plaintiff alleges that defendants’ conduct was racially motivated. Before the Court is the motion to dismiss of Michael P. Lane, Director of the Illinois Department of Corrections, and Richard DeRobertis, Warden of Stateville Correctional Center during the period in which plaintiff’s claims arose. For the reasons set forth herein, the motion is granted.

In order for liability to arise under 42 U.S.C. § 1983, a plaintiff must establish a defendant’s direct personal responsibility for the claimed deprivation of a constitutional right. Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir.1981). In the instant case, plaintiff seeks to hold Lane liable for allegedly unconstitutional visitation restrictions on the ground that Lane is responsible for the actions of his subordinates. But Lane’s supervisory responsibility is insufficient to constitute personal involvement and therefore liability will not be imposed vicariously upon a theory of respondeat superior. Id.

The exhibits plaintiff has submitted in support of his complaint do not cure the defect. It appears from the exhibits that plaintiff provided Lane with copies of grievances plaintiff had filed with the Institutional Inquiry Board and with defendant Assistant Warden Michael O’Leary. That Lane may have been apprised of the claimed misconduct of subordinates does not, however, subject him to personal liability. The Seventh Circuit, in Crowder v. Lash, 687 F.2d 996, 1006 (7th Cir.1982), rejected such a broad theory of liability that would “hold any well informed Commissioner of Corrections personally liable for damages flowing from any constitutional violation occurring at any jail within that Commissioner’s jurisdiction.” Id. (Emphasis in original.) The court stated that such a theory of liability would be “inconsistent with the personal responsibility requirement____” Id.

Plaintiff likewise has failed to allege sufficiently personal involvement on the part of DeRobertis. Plaintiff merely alleges that DeRobertis was apprised of the matter but failed to intervene. The complaint and exhibits give no indication that DeRobertis participated personally in the challenged actions or that the alleged misconduct occurred at his direction or with his express consent. See Crowder, supra, 687 F.2d at 1006. Nothing in the complaint or exhibits suggests that DeRobertis’ position in the prison hierarchy imposed upon him a duty to intervene.

Accordingly, the motion to dismiss as to defendants Lane and DeRobertis is granted.

IT IS SO ORDERED.

      . The remaining four defendants have filed answers to the complaint.


author: BECHTLE, District Judge.

text:
    COMMODORE BUSINESS MACHINES, INC. v. JST DISTRIBUTING COMPANY, INC.
    Civ. A. No. 84-1992.
    United States District Court, E.D. Pennsylvania.
    Oct. 29, 1984.

      Christine Crawford, West Chester, Pa., Craig Ziegler, Philadelphia, Pa., for plaintiff.
    William F. Sweeney, Philadelphia, Pa., for defendant.
   MEMORANDUM AND ORDER

BECHTLE, District Judge.

Presently before the court is defendant’s motion to dismiss for lack of personal jurisdiction. For the reasons stated herein, the motion will be granted.

I. FACTS

Plaintiff Commodore Business Machines, Inc. (“Commodore”) is a business incorporated in Delaware with its principal place of business in West Chester, Pennsylvania. Defendant JST Distributing Company, Inc. (“JST”) is a Missouri corporation with its principal place of business in Kansas. Defendant is engaged in the distribution of computer hardware and software.

Beginning in January, 1982, defendant began ordering products from plaintiff’s representative in Missouri. All communications by defendant regarding purchases of the plaintiff’s products were made to the Missouri representative. Defendant made payments for some of the goods to an address in Chicago, Illinois. Plaintiff has instituted the present action in order to recover the unpaid purchase price of other goods delivered to defendant.

Defendant does not have any offices or agents in Pennsylvania, does not ship goods into or through Pennsylvania, owns no real estate in Pennsylvania, and is not registered in Pennsylvania to do business as a foreign corporation. Defendant now moves to dismiss the action for lack of personal jurisdiction.

Plaintiff argues that defendant is subject to jurisdiction in Pennsylvania because the goods shipped to defendant from plaintiff were shipped “F.O.B. West Chester, Pennsylvania.” Plaintiff claims that the effect of shipping the goods in this manner was a transfer of both title and risk of loss to defendant in Pennsylvania, thereby causing defendant to purposely avail itself of doing business in Pennsylvania.

II. DISCUSSION

The plaintiff bears the burden of demonstrating that a defendant has sufficient contacts with the forum state once a jurisdictional defense has been raised. Compagnie des Bauxile de Guinee v. L’Union, 723 F.2d 357 (3d Cir.1983); Lacovara v. Merrill Lynch, Pierce, Fenner & Smith, 551 F.Supp. 601 (E.D.Pa.1982). Plaintiffs pleadings and affidavits are to be considered in a most favorable light. Cottrell v. Zisa, 535 F.Supp. 59 (E.D.Pa. 1982).

Rule 4(e) of the Federal Rules of Civil Procedure permits a district court to assert personal jurisdiction over a nonresident to the extent allowed under the law of the state where the district court sits. In turn, the Pennsylvania Long Arm Statute, 42 Pa.Stat.Ann. § 5322(b) (Purdon 1981), allows a court to exercise jurisdiction over a person “to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.” The reach of the Pennsylvania statute is, therefore, co-extensive with the due process clause of the United States Constitution. Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir.1984).

In order to satisfy due process a plaintiff must establish that a defendant has “continuous and systematic general business contacts” within the forum state or that the cause of action “arises from defendant’s activities” within the forum state. Id. at 66. See Helicopteros Nacionales de Colombia, S.A. v. Hall, — U.S. -, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).

In this case defendant does not have continuous and systematic general business contacts in Pennsylvania. Defendant is not authorized to do business in Pennsylvania and does not have an agent in the state. It has never shipped products into Pennsylvania and does not have any employees in the state. In addition, defendant does not own real or personal property in Pennsylvania. The only business contact defendant has with Pennsylvania is that Pennsylvania is the state from which goods were sent to defendant as a result of orders placed by defendant with plaintiff’s agent in Missouri. This contact does not amount to the continuous and systematic contact within the state required by the due process clause. Thus, personal jurisdiction can be exercised over defendant only if the cause of action has arisen from defendant’s activities in Pennsylvania.

The cause of action is a breach of contract action. However, the breach of the contract did not arise from defendant’s activities in Pennsylvania. The orders for the goods in question were delivered to and accepted by plaintiff’s agent in Missouri. Defendant’s performance under the contract, i.e., to send payments for the goods delivered, was to be done from its offices outside of Pennsylvania. Thus, defendant neither negotiated the terms of, formed, nor breached the contract in question in Pennsylvania.

Additionally, the alleged transfer of both title and risk of loss to defendant in Pennsylvania pursuant to the shipping term was not an “activity by defendant.” Even if the transfer could be considered to be an activity by defendant, it was not an activity which gave rise to the instant action, and could not be a basis upon which defendant could reasonably anticipate being haled into court in Pennsylvania. World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). Therefore, since plaintiff has failed to establish that defendant has the necessary minimum contact with Pennsylvania, this court shall dismiss the complaint for lack of personal jurisdiction.

An appropriate Order will be entered.