author: JOHN GARRETT PENN, District Judge.

text:
    Chris WHITE, et al., Plaintiffs, v. Angelo FOSCO, et al., Defendants.
    United States District Court, District of Columbia.
    No. 81-2500.
    Dec. 7, 1984.

      William A. Dobrovir, Washington, D.C., for plaintiffs.
    Thomas C. Green, Peter Van N. Lockwood, William H. Allen, Stephen M. Sacks, Ira M. Lechner, Frederick A. Douglas, Earl C. Dudley, Arthur D. Burger, F. Joseph Nealon, Washington, D.C., for defendants.
   MEMORANDUM ORDER

JOHN GARRETT PENN, District Judge.

This matter comes before the Court on a motion of defendants Connerton and Bernstein to dismiss certain allegations of the complaint for failure to state a claim upon which relief can be granted. “A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief". Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C.Cir.1979). Applying this stringent test to the allegations of the complaint, the Court grants the motion to dismiss in part, and denies the motion in part.

I

The facts which plaintiffs allege in support of their claims against Connerton and Bernstein are as follows. In 1969, Messrs. Connerton and Bernstein undertook to represent members of the Mail Handlers Division of the Laborers International Union of North America (“LIUNA”) in a class action suit (hereinafter “postal workers litigation”) against the United States Postal Service (“USPS”). Although Connerton and Bernstein were full-time salaried counsel to LIUNA at the time (General Counsel and Associate General Counsel respectively), they represented their LIUNA clients in this litigation privately rather than as LIUNA counsel. Plaintiffs further allege that Connerton and Bernstein made use of LIUNA publications to solicit LIUNA class members for the lawsuit. The suit was settled without a trial, and as part of the settlement Connerton and Bernstein were awarded attorneys’ fees out of the class’ recovery fund. The attorneys’ fees were awarded to Connerton and Bernstein in their private capacity rather than in their capacity as . union counsel.

II

Plaintiffs allege that the aforementioned actions of Connerton and Bernstein constituted statutory and common law breach of fiduciary duty, conversion of union funds, and violations of several provisions of the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Specifically, plaintiffs allege that: (1) by bringing the suit in their private rather than in their union capacity, and by retaining the attorneys’ fees, Connerton and Bernstein breached their fiduciary duty to LIUNA in violation of Section 501(a) of the Labor-Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. § 501(a) (“Section 501(a)”), and the common law of trusts of the District of Columbia (“common law”); (2) the use of LIUNA facilities and publications to solicit members for the postal workers litigation was an abuse of defendants’ positions as LIUNA officers, employees, and attorneys in violation of Section 501(a) and the common law; (3) the failure to turn over to the union the profits of the litigation (the attorneys’ fees) was a conversion of union funds in violation of Section 501(c) of the LMRDA, 29 U.S.C. § 501(c) (“Section 501(c)”), and constituted racketeering activity in violation of Sections 1961(1) and 1962 of RICO, 18 U.S.C. §§ 1961(1), 1962; and (4) the failure to turn over to the union the profits of the litigation injured plaintiffs’ business and property in violation of 18 U.S.C. § 1964(e) by depleting the union’s treasury .

Ill

Defendants Connerton and Bernstein seek to dismiss these claims on several grounds. With regard to the breach of fiduciary duty allegations , defendants assert that: (1) the claims are barred by collateral estoppel; (2) the allegations fail to state a claim which can be maintained by the union; (3) as a matter of law, union attorneys may handle cases in their private capacities and receive attorneys’ fees; (4) the allegations are barred by the statute of limitations and laches; and (5) Mr. Bernstein was not subject to Section 501 at the time of the postal workers litigation and, therefore, is not liable under that section.

Defendants assert that the Section 501(c) claim is insufficient as a matter of law because (1) it fails to allege adequately fraudulent intent, and (2) the attorneys’ fees never belonged to LIUNA and therefore were not “union funds” for purposes of Section 501(c).

With regard to the RICO claims, defendants assert that since the predicate act, the 501(c) violation, is deficient as a matter of law, the RICO claims must fail as well. They further assert that the complaint fails to allege several necessary elements of a RICO claim, viz., that the union’s affairs were conducted “through a pattern of racketeering” ; that there was a specific “racketeering enterprise injury”; and that Connerton and Bernstein were connected to organized crime. The Court will examine these allegations and defenses beginning with the Section 501(c) and RICO claims.

IV

A. Section 501(c) Claim

Plaintiffs allege that the failure of Connerton and Bernstein to turn over to the union the profits (attorneys’ fees) from the postal workers litigation constituted a conversion of union funds in violation of 29 U.S.C. § 501(c). Section 501(c) provides that

[a]ny person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use, or the use of another, any of the moneys, funds, securities, property, or other assets of a labor organization of which he is an officer, or by which he is employed, directly or indirectly, shall be fined not more than $10,-000 or imprisoned for not more than five years, or both.

29 U.S.C. § 501(c). The key requirements of this provision for purposes of plaintiffs’ claim are: (1) that the converted funds belong to the union, and (2) that the conversion be done unlawfully and willfully. Neither requirement is met in this case.

1. The attorneys’fees did not belong to LIUNA.

The record clearly shows that Connerton and Bernstein undertook the representation of the LIUNA members as private rather than as union attorneys; that the propriety of awarding attorneys’ fees was raised, litigated, and decided in defendants’ favor; that the attorneys’ fees were specifically awarded to Connerton and Bernstein in their private rather than union capacities; and that no objection to the award or demand for an accounting was made by the union for eight years. At least prima facie it would appear that the attorneys’ fees belonged to Connerton and Bernstein, and not to the union.

Plaintiffs attempt to overcome these seemingly dispositive facts by asserting that the attorneys’ fees were “constructively” the union’s. Plaintiffs argue that: Connerton and Bernstein breached their fiduciary duty to the union by bringing the postal workers litigation in their private capacities, and by receiving attorneys’ fees; when they breached their fiduciary duty to the union, the attorneys’ fees immediately became subject to a constructive trust in favor of the union, and defendants had an immediate duty to account; the fees thus “belonged” to LIUNA as a matter of law; and defendants’ failure to account and pay over was a conversion in violation of Section 501(c).

Plaintiffs’ theory is contrived and utterly without merit. The breach of fiduciary duty and imposition of a constructive trust — both of which are prerequisites, under plaintiffs’ theory, to a conclusion that the funds were “constructively” the union’s —are hypothetical, merely theories ■ at this time. No court has found such a breach or ordered such a remedy. In addition, under plaintiffs’ theory the constructive trust is a remedy for the alleged breach of fiduciary duty. If the constructive trust makes the attorneys’ fees the property of the union, it does so only for purposes of remedying the breach of fiduciary duty, not for establishing a subsequent violation. It would be illogical and manifestly unjust to use what is only a remedy as a predicate for a further violation (conversion) unless, after being on notice that the funds were subject to the constructive trust, the defendants still failed to account. But these are not the facts of this case. The Court agrees with the defendants that the attorneys’ fees did not belong to the union for purposes of Section 501(c).

2. The failure to turn over the attorneys’fees to the union was not willful conversion.

Even arguendo that the union should have been entitled to the attorneys’ fees, and that the attorneys’ fees belong to the union by operation of some sort of constructive trust, the Court could not find that the “defendants’ failure to account and pay over was a [willful] conversion in violation of § 501(c)” as plaintiffs contend . As already noted, the defendants were specifically awarded attorneys’ fees in their private capacity rather than in their capacity as union counsel, and the union failed to object to the award for eight years. Under these facts, Connerton and Bernstein could have had no idea that the fees were not rightfully theirs, or that they were under a “duty” to pay over the fees to the union. Accordingly, they could not have possessed the requisite intent (“willfulness”) for conversion under Section 501(c).

In conclusion, even under the stringent test of Conley v. Gibson, supra, plaintiffs can prove no set of facts which would make the attorneys’ fees “funds of the union”, or establish that defendants’ failure to pay over the fees to the union was “willful conversion”. The 501(c) claim is dismissed with prejudice.

B. RICO Claims

Plaintiffs also allege violations of Sections 1962 and 1964(c) of RICO. Section 1962 requires that there be “racketeering activity”. Racketeering activity is defined in 18 U.S.C. § 1961(1) to include any act indictable under Section 501(c). Plaintiffs’ pleadings state that Section 501(c) is the offense upon which the 1962 violation is predicated. Since plaintiffs have failed to state a claim under Section 501(c), see discussion supra, their Section 1962 claim must fail as well. In a similar vein, 18 U.S.C. § 1964(e) requires that a person be injured “by reason of a violation of Section 1962”. Since plaintiffs have failed to establish their Section 1962 claim, their Section 1964(c) claim is also legally insufficient.

Defendants also contend that the plaintiffs have not alleged a distinct “RICO-type injury”, but only injury from the predicate acts. Defendants argue that to maintain a civil cause of action under RICO, plaintiffs must allege and prove not merely the same injury as that caused by the predicate acts, but a separate and distinct injury resulting from a violation of the RICO statute itself.

Whether the RICO statute requires a plaintiff to plead a specific “RICO injury” (or “racketeering enterprise injury” as it has sometimes been termed) is an issue subject to much debate and disagreement. This Circuit has not had an opportunity to rule on the question, but a large number of other district and circuit courts have addressed the issue. In the United States District Court for the District of Columbia there are five decisions which address the issue: Slattery v. Costello, 586 F.Supp. 162, 165-67 (D.D.C.1983); Guerrero v. Rateen, 571 F.Supp. 714, 718-21 (D.D.C.1983); Cross v. Price Waterhouse & Co., [1982—83] Fed.Sec.L.Rep. (CCH) ¶ 199,153, at n. 4 (D.D.C.1982); Bayly Corp. v. Marantette, [1982] Fed.See.L.Rep. (CCH) ¶ 198,834, at 94,291 (D.D.C.1982); Charing Cross Inc. v. The Riggs National Bank, slip op. No. 82-1116 at 9-14 (D.D.C. Oct. 7, 1983). Three of the decisions (Guerrero, Charing Cross and Bayly) embrace the “RICO-type” or “racketeering” injury requirement while two (Slattery and Charing Cross) reject it.

The most recent word on the subject has come from the Second Circuit where the rule is now firmly established that a private plaintiff suing under the civil RICO provisions must allege a “racketeering” or “RICO-type” injury. In Sedima, S.P.R.L. v. Imrex Co., 741 F.2d 482 at 494-96 (2d Cir.1984), Judge Oakes, writing for the Circuit, stated that a plaintiff must “show injury different in kind from that occurring as a result of the predicate acts themselves, or not simply caused by the predicate acts, but also caused by an activity which RICO was designed to deter”. Id. at 496. Accord Bankers Trust Co. v. Rhoades, 741 F.2d 511 at 518 (2d Cir.1984); But see Furman v. Cirrito, [current] Fed. Sec.L.Rep. CCH, ¶ 91,663 (2d Cir.1984).

After considering the case law, the statute itself, the scant legislative history on point, and the growing literature on the issue, this Court concludes that a plaintiff suing under civil RICO must allege a distinct RICO-type of injury, i.e., an injury caused by a violation of Section 1962, and not merely an injury caused by the predicate acts. The Court agrees with the Second Circuit and the three decisions of this court that the “by reason of a violation of section 1962” language of Section 1964(c) imposes this requirement.

It is clear from plaintiffs’ pleadings that they have failed to allege an injury separate and distinct from that caused by the predicate acts. For this additional reason plaintiffs’ RICO allegations are insufficient as a matter of law and must be dismissed ,.

C. Breach of Fiduciary Duty Claims

Defendants make several arguments in support of their motion to dismiss the breach of fiduciary duty allegations. After careful review, the Court concludes that these arguments are either without merit or are insufficient to warrant dismissal at this time.

Defendants first argue that the propriety of the attorneys’ fees award was considered and determined in their favor by the court in the postal workers litigation. Therefore, they argue, collateral estoppel bars the breach of fiduciary duty claims.

Defendants’ argument is without merit. For collateral estoppel to apply, the issues on which preclusion is sought must have been actually and necessarily determined in a prior action, Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979), and the issues in both actions must be the same, McCord v. Bailey, 636 F.2d 606, 608-09 (D.C.Cir.1980) and Donovan v. Postal Service, 530 F.Supp. 872, 898 (D.D.C.1981) (FLSA litigation). See also Restatement (Second) of Judgments § 27 (1980).

The breach of fiduciary duty issues raised by the plaintiffs in this action are whether it was a breach of fiduciary duty for Connerton and Bernstein to represent LIUNA members as private rather than as union counsel; to use LIUNA facilities to solicit individual LIUNA members for a private law suit; and to receive attorneys’ fees. These issues were not considered or determined in the postal workers litigation. While the court in that action did consider whether Connerton and Bernstein should be awarded attorneys’ fees, the issue was not framed in terms of whether such an award would amount to a breach of fiduciary duty. More importantly, the court in the postal workers litigation did not consider at all the issues of whether using LIUNA facilities to solicit clients or bringing the action privately constituted a breach of fiduciary duty. Because the issues raised in this action were not considered in the postal workers litigation, the doctrine of collateral estoppel is inapplicable.

Defendants next argue that the allegations fail to state a claim which may be maintained by the union. Defendants’ argument is that (1) even if they received the attorneys’ fees improperly, the union would not be entitled to the fees and therefore has not been injured, and (2) since the union is not entitled to the fees and has not suffered any injury, the allegations fail to state a claim which may be maintained by the union.

Defendants’ argument ignores the fact that there are other breach of fiduciary duty allegations. The complaint also alleges that defendants should have brought the postal workers litigation as union attorneys, and that they should not have used LIUNA facilities to solicit clients for a private law suit. Both of these allegations assert injuries which may be maintained by the union under § 501(a).

Defendants’ third argument is that as a matter of law union attorneys may handle cases in their private capacities and receive attorneys’ fees. This will not always be true. Whether union counsel may represent some members of a union privately depends on the conditions, both explicit and implicit, of his or her office and employment, and provisions in the constitution or by-laws of the union, and any other understandings or arrangements which may exist. The union has the power, through contract, constitution, and by-laws to dictate the extent to which union counsel may engage in non-union matters.

Plaintiffs have cited from a provision of the LIUNA constitution, purportedly in effect at the time the law suit was commenced, which states that “[t]he General Counsel shall devote all his time exclusively to the affairs and welfare of the International Union”. While the Court is unable at this time to determine the full meaning and scope of this provision, or to know what other understandings there were between the union and counsel in this regard, the quoted provision is sufficient for purposes of a motion to dismiss to rebut the argument that union counsel may, as a matter of law, represent union members privately.

Defendants’ fourth argument is that plaintiffs’ 501(a) claim is barred by laches and/or the statute of limitations. As a threshold matter the Court must determine whether the statute of limitations or laches applies. The weight of authority suggests that a 501(a) breach of fiduciary duty claim is governed by laches. See Note, 73 Yale L.J. 443, 466 n. 114 (1964); Morrissey v. Curran, 482 F.Supp. 31, 40 (S.D.N.Y.1979); Yablonski v. Mine Workers, 68 Lab.Cas. ¶ 12,810, 24,615 (D.D.C. 1972); Weaver v. Mine Workers, 68 Lab. Cas. ¶ 12,700, 24,287 n. 6 (D.D.C.1972); Blankenship v. Boyle, 329 F.Supp. 1089, 1112 (D.D.C.1971).

The defense of laches requires a finding that the plaintiff inexcusably or unreasonably delayed in bringing the claim, and that the delay was prejudicial to the defendant. Rozen v. District of Columbia, 702 F.2d 1202 (D.C.Cir.1983). Although the eight year delay would seem to be unreasonable especially in light of the fact that the postal workers litigation giving rise to the claim was a matter of public record, there has not been sufficient proof on either this point or on the issue of prejudice. Accordingly, the Court declines to dismiss the claim on the grounds of laches at this time.

Finally, defendants argue that Mr. Bernstein, Associate General Counsel of LIUNA at the time of the postal workers litigation, was not an “officer, agent, shop steward, or other representative” for purposes of Section 501(a). Rather, they argue, Mr. Bernstein was part of the union’s “salaried nonsupervisory professional staff”, a category of persons specifically exempt from the reach of Section 501(a). 29 U.S.C. § 402.

Without evidence regarding the specific duties, responsibilities, and terms of Bernstein’s position, the Court is unable to determine whether Mr. Bernstein’s position was within the purview of Section 501(a). Accordingly, the Court declines to dismiss this claim at this time.

V

For the foregoing reasons, the Court grants the motion to dismiss the 501(c) and RICO counts against defendants Connerton and Bernstein, but declines to dismiss the breach of fiduciary duty claims at this time.

SO ORDERED.

      . By order of this Court, filed January 3, 1983, defendant O’Sullivan was permitted to join in and adopt the portion of this motion which seeks dismissal of the RICO claims. See infra note 33.

      . See generally complaint at ¶¶ 23-25 and the pleadings to this motion. For purposes of this motion to dismiss the Court accepts the truth of the well-pleaded factual allegations of the complaint. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, n. 2, 53 L.Ed.2d 557 (1977), and Phillips v. Bureau of Prisons, 591 F.2d 966, 969 (D.C.Cir.1979).

      . This suit, initially one of several suits which were consolidated, was brought by Connerton and Bernstein along with other attorneys. The suit sought recovery of back-pay for all qualified postal workers under the Federal Employees' Salary Comparability Act of 1965, 39 U.S.C. §§ 3571-73. See Plaintiffs’ Opposition to Motion to Dismiss (‘‘Opp.’’) at 12. The class consisted of all qualified postal workers, not just LIUNA members. Opp. at 2. Indeed, whereas the entire Mail Handlers Division of LIUNA consisted at the time of only approximately 60,-000 postal employee members, Opp. at 2, the total number of potential class members was found by Judge Richey to approximate 800,000. See United Federation of Postal Clerks v. United States, et al., 61 F.R.D. 13 (D.D.C.1973) (Richey, J.) at 16. It is not clear from the record how many postal worker members of the Mail Handlers Division in fact participated in the suit.

      . Complaint at ¶ 24.

      . Id.

        . Id. at ¶ 25, and United Federation of Postal Clerks v. United States, supra note 3, at 16, n. 7.

      . See generally complaint at ¶¶ 32-36.

      . Id. at 32-33, and Opp. at 5, 22.

      . Complaint at ¶¶ 32-33.

      . Id. at ¶ 35(b), and Opp. at 32, 34.

      . Complaint at ¶ 36, and Opp. at 32.

      . Id. at ¶¶ 23-25.

      . See Memorandum of Points and Authorities in Support of Motion to Dismiss ("Defts. Mot.”) at 5 — 11, and Defendants’ Reply Memorandum ("Reply”) at 11-13.

      . Defts. Mot. at 11-13, and Reply at 6-9.

      . Defts. Mot. at 13, and Reply at 9-11.

      . Defts. Mot. at 14-17, and Reply at 13-16.

      . Defts. Mot. at 17, and Reply at 16.

      . Defts. Mot. at 20-21, and Reply at 20-22.

      . Defts. Mot. at 20-21, and Reply at 18-19.

      . Defts. Mot. at 19-21, and Reply at 18-19.

      . Defts. Mot. at 22-25, and Reply at 23-24.

      . Defts. Mot. at 25-28, and Reply at 24.

      . Defts. Mot. at 28-31, and Reply at 25-27.

      . See complaint at ¶¶ 24, 25; See also United Federation of Postal Clerks v. United States, 61 F.R.D. 13 (D.D.C.1973) (Richey, Jr.). Judge Richey awarded the attorneys fees in 1973. The Complaint was not filed until 1981.

      . See Opp. at 32, 34, and complaint at ¶ 35.

      . The cases cited by plaintiffs, see Opp. at 34-35, do not support this theory.

      . Opp. at 34.

      . In addition, plaintiffs’ failure to raise this claim for eight years would very possibly give rise to a statute of limitations (three years in the District of Columbia) or laches defense. Under plaintiffs’ theory, the defendants’ failure to pay over and account is the basis for the 501(c) violation (which in turn is the basis for the RICO violations). However, as discussed above, defendants could have had no idea of any alleged duty to account. Had the plaintiffs made a demand for an accounting sooner, defendants would have been in a position to account and under plaintiffs’ theory, to avoid the alleged 501(c) violation. Thus, plaintiffs' eight year delay may have prejudiced the defendants.

      . Plaintiffs also allege a violation of 18 U.S.C. § 1961(1). This section, however, is merely definitional.

      . See Opp. at 32.

      . In addition, since plaintiffs waited eight years to bring the RICO claims, these claims are probably time-barred. These RICO provisions do not specify a limitations period. Since the relief sought under RICO is legal and not equitable, see Opp. at 22, the Court must apply the analogous local statute of limitations. See Saffron v. Department of Navy, 561 F.2d 938, 941 (D.C.Cir.1977) and Ingram v. J. Ray McDermott & Co., Inc., 495 F.Supp. 1321, 1324 n. 4 (E.D.La. 1980). The applicable statute of limitations period under D.C.Code § 12-301 is three years.

      . Defendants have sought dismissal of the RICO counts on the additional grounds that the complaint fails to allege a "pattern of racketeering”, or a connection between the defendants and organized crime. The Court need not address these questions.

      . The’ Court also dismisses the RICO claims against defendant O’Sullivan, but only on the ground that the complaint does not allege a specific “RICO-type” injury. See supra note 1.

      . Defts. Mot. at 5-11, and Reply at 11-13.

      . Defts. Mot. at 11-13, and Reply at 6-9.

      . Defendants argue that (a) if anyone else is entitled to the attorneys' fees, it is the individual class members out of whose recovery fund the attorneys’ fees were awarded; and (b) as a matter of law, the union could not have been awarded the attorneys’ fees.

      . Defts. Mot. at 13, and Reply at 9-11.

      . Opp. at 7.

      . Defts. Mot. at 14-17, and Reply at 13-16.

      . The application of the statute of limitations and laches to the 501(c) and RICO claims is discussed briefly at notes 28 and 31 supra.

      . The common law breach of fiduciary duty claim is equitable in nature. Accordingly, laches applies.

      . Two cases have, however, used the applicable statute of limitations (three years in this case) as a guide. See Corley v. Hecht, 530 F.Supp. 1155, 1159 (D.D.C.1982), and Blakenship v. Boyle, 329 F.Supp. at 1112.

      . Defts. Mot. at 17, and Reply at 16.


source: Caselaw Access Project

author: REYNOLDS, Chief Judge.

license: Public Domain

text:
    WHITE HEN PANTRY, DIVISION JEWEL COMPANIES, INC., Plaintiff, v. Delton L. JOHNSON, Antonia Johnson, d/b/a ToniDel, Inc., et al., Defendants.
    Civ. A. No. 82-C-525.
    United States District Court, E.D. Wisconsin.
    Dec. 10, 1984.

      Andrew O. Riteris, Toni L. Bonney, Milwaukee, Wis., for plaintiff.
    Alan H. Deutch, Eugene E. Detert, Milwaukee, Wis., for defendants Johnson.
   DECISION AND ORDER

REYNOLDS, Chief Judge.

There are four motions pending in this interpleader action, three of which pertain to the Johnson defendants’ counterclaim under the Wis. Fair Dealership Law. This decision and order will resolve the pending motions and confirm a trial date for the counterclaim in the first phase of the bifurcated proceedings.

The Johnsons’ counterclaim alleges that their dealership was terminated without good cause as that term is defined in § 135.02(6) Wis.Stats., and they seek compensatory and punitive damages. The plaintiff seeks summary judgment on this counterclaim, or in the alternative, that the demand for punitive damages be stricken. Because there are material issues of fact in dispute, the motion for summary judgment will be denied.

The defendants’ dealership was terminated because they refused to participate in a trial program of 24 hour operation involving the plaintiff’s twenty Wisconsin franchises in the summer of 1981. The plaintiff argues that the Johnsons’ refusal to participate provided good cause to terminate the dealership since the 24 hour operation program was non-diseriminatory, essential, and reasonable. Because the Court agrees with the defendants that whether 24 hour operation is an essential and reasonable requirement at their location is a disputed material issue of fact, summary-judgment must be denied. The plaintiff’s alternative request to strike the demand for punitive damages will be granted, however, because punitive damages are not available in what is essentially an action for breach of contract. Benlo Chemicals, Inc. v. Buckman Laboratories, 520 F.Supp. 160 (E.D.Wis.1981).

The Johnson defendants’ motion to compel production of documents disclosing the results of the 24 hour campaign at those White Hen franchises which participated will also be denied. The determination of whether the plaintiff had good cause to terminate the defendants’ dealership must be based upon the facts as they existed at the time the decision to terminate was made. In addition, the defendants’ argument on the summary judgment motion emphasizes that the reasonableness of the 24 hour requirement must be assessed by reference to the conditions at their particular location and their prior experience with 24 hour operation. Consequently, the ultimate results of the 24 hour campaign at other locations are not relevant to the defendants’ counterclaim.

The defendants’ motion for sanctions against the plaintiff and its attorneys for citing an unpublished decision to support their summary judgment motion in violation of § 809.23(3) Wis.Stats. will be denied. Since both parties have supplied the Court with copies of related state court decisions, sanctions are inappropriate. Finally, the plaintiff’s motion to add an additional creditor as a defendant in the inter-pleader phase of this bifurcated action is unopposed and will be granted.

IT IS THEREFORE ORDERED that the plaintiff’s motion for summary judgment on the counterclaim is denied and the plaintiff’s alternative motion to strike the demand for punitive damages on the counterclaim is granted.

IT IS FURTHER ORDERED that the defendants’ motions to compel discovery and impose sanctions on the plaintiff are denied. The first phase of this bifurcated action will be tried on December 17,1984 at 9:30 A.M. The parties’ final pretrial reports must be submitted on or before Friday, December 14, 1984. If the Court decides after reviewing the reports that a pretrial conference would be appropriate, the conference will be held December 17 before the trial begins.

IT IS FURTHER ORDERED that the plaintiff is granted leave pursuant to Fed. R.Civ.P. 14 to add Starpoint ■ Publishing Corp. as a party defendant. The inter-pleader phase of this bifurcated action will be scheduled after the conclusion of the first phase and after notice to all parties.


author: LITTLE, District Judge.

text:
    POGO PRODUCING COMPANY v. SOUTHERN NATURAL GAS COMPANY.
    Civ. A. No. 84-3345.
    United States District Court, W.D. Louisiana, Monroe Division.
    Dec. 11, 1984.

      Barham & Churchill, Mack E. Barham, David R. Richardson, Charles F. Thensted, John F. Whitney, New Orleans, La. (Paul G. Van Wagenen, Houston, Tex., of counsel), for plaintiff.
    Shotwell, Brown & Sperry, L. Michael Ashbrook, Monroe, La. (Fulbright & Jaworski, B.J. Bradshaw, M.W. Parse, Jr., Houston, Tex., of counsel), for defendant.
   RULING

LITTLE, District Judge.

Plaintiff and defendant entered into contracts for the purchase and sale of natural gas. Alleging a breach of contract, plaintiff filed suit in the Fourth Judicial District Court for the Parish of Ouachita, State of Louisiana. The suit seeks an injunctive relief, specific performance and a declaratory judgment. The relief sought by the plaintiff is founded on Louisiana law and would generally be regarded as a breach of contract suit.

Defendant has caused the state court’s suit to be removed to this Court, not on the grounds of diversity, but on the grounds that plaintiff’s case “arises under” a Federal law, to-wit, the Natural Gas Act 15 U.S.C. § 717 et seq. Plaintiff has filed a Motion to Remand this case and seeks sanctions for baseless removal.

The Order to Remand is granted. The plaintiff’s suit is not tethered in any respect to any federal statute. In its pleadings, the plaintiff makes no mention of any connexity between the causes of action alleged and the federal statute. To the contrary, plaintiff’s case is firmly anchored to causes of action arising under Louisiana law for breach of contract. It may be that the Natural Gas Act, supra, will afford the defendant a defense, but federally created defenses cannot be used to create federal jurisdic tion. See, Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1909); City of New Orleans v. United Gas P.L. Co., 390 F.Supp. 861 (E.D.La.1974) (Rubin, D.J.).

The defendant has raised in its brief in opposition to the Motion to Remand the fact that it has filed a proceeding before the FERC requesting that agency to take jurisdiction of the issues in dispute in this case. The defendant further suggests that this Court should stay this action until the FERC issues its findings. There may be many reasons why a stay should be granted in order for the administrative agency to review this technical dispute. All those reasons can be argued in the state court and, if valid, would be the subject of a stay order issued by that state court. This Court could not, however, grant a stay order concerning the matter over which it has no incipient jurisdiction.

Defendant has also suggested that this Court has jurisdiction pursuant to the Outer Continental Shelf Act (OCSLA), 43 U.S.C. § 1331 et seq. since the mineral operation by Pogo emanates from an offshore lease granted by an agency of the United States. If the present controversy arises out of or in connection with any operation conducted on the outer Continental Shelf, then OCSLA would confer jurisdiction on this Court. See, 43 U.S.C. § 1349(b).

Such a situation was present in the case of Fluor Ocean Services, Inc. v. Rucker Co., 341 F.Supp. 757 (E.D.La.1972). There, the United States granted a mineral lease to Shell Oil Co. on the outer Continental Shelf. The lease required the lessee to remove equipment and material not needed for producing wells upon the expiration of the lease. From that obligation, the Fluor controversy arose. In the Pogo matter, however, the leases in the outer Continental Shelf are not the source of the controversy. The issue which is in controversy is the responsibility of Southern to Pogo to purchase or pay for the gas captured by Pogo. The dispute between Pogo and Southern does not arise on the Continental Shelf. The dispute arises as a result of a private contract between a mineral lessee and a production purchaser.

Plaintiffs motion to impose sanctions is denied. The positions advanced by the defendant, while not in the Court’s opinion legally valid, are not frivolous or completely lacking in merit. Under these circumstances, the sanctions suggested by Rule 11, amended in 1988, will not be imposed.

The Court is of the opinion that oral argument is unnecessary.

The Motion to Remand is GRANTED and this case is remanded to the Fourth Judicial District Court, Ouachita Parish, Louisiana. The Motion to Impose Sanctions is DENIED.


author: PEREZ-GIMENEZ, Chief Judge.

text:
    Francisca SANTIAGO, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    Civ. No. 83-2503(PG).
    United States District Court, D. Puerto Rico.
    Dec. 11, 1984.
    Manuel de Jesús Mangual, San Juan, P.R., for plaintiff.
    Wanda Rubianes-Collazo, U.S. Atty., Hato Rey, P.R., for defendant.
   OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

Plaintiff filed this action on October 14, 1983, pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Secretary of Health and Human Services (the Secretary) denying her claim for disability insurance benefits.

The Secretary did not answer within sixty days as required by Rule 12(a) of the Federal Rules of Civil Procedure and Rule 801.3(A) of the Rules of the United States District Court for the District of Puerto Rico. On February 8, 1984, almost two months after the expiration of the period prescribed for the filing of the Secretary’s answer, the Secretary filed an answer to the complaint. With the answer, the Secretary did not file a certified copy of the transcript of the record, as required in Rule 801.3(A) and 42 U.S.C. § 405(g).

On February 14,1984, the Secretary filed a motion requesting the Court to take notice that she was filing the administrative record in this case. On February 23, 1984, an amended answer was filed by the Secretary. Almost four months later, on June 8, 1984, the Secretary filed a motion for extension of time of thirty days to file memorandum of law. The reasons given for not being able to file the memorandum were the same boiler plates requests found in Alameda v. Secretary of Health, Education and Welfare, 622 F.2d 1044 (1st Cir. 1980), where the First Circuit Court of Appeals stated at 1046:

We have seen no other situation where for many months the major department of the federal government not only declared itself so understaffed that it could not file the simplest of legal memoranda to help advance the resolution of claims of the most misery-ridden claimants, but did not take the trouble to explain to the court the problems it faced.

The motion for extension was granted the same day it was filed. Therefore, the Secretary had until July 8, 1984, to file the memorandum. Not only did she not file the memorandum on July 8, 1984, but on August 6, 1984, the Secretary filed the same motion as the one filed on June 8, 1984. No order was entered as to said motion. One month later, on September 6, 1984, the Secretary filed the same motion as the ones filed on June 8 and August 6, 1984. An order was entered on September 10, 1984, granting the Secretary a last extension of time. To date, the Secretary has yet to file her memorandum of law even though the extension of time granted her expired almost two months ago.

Plaintiff filed a motion on November 30, 1984, requesting the Court to remand the case for computation of benefits because the Secretary had failed to file her memorandum of law. What plaintiff is requesting amounts to a judgment by default, and it seems clear that a court may not enter a default judgment against the Secretary in an action such as this because of the Secretary’s failure to comply with the pleading requirements of the Federal Rules of Civil Procedure, “unless the claimant establishes his claim by introducing some evidence that the Secretary’s conclusions are not supported by substantial evidence.” Alameda v. Secretary of Health, Education and Welfare, 622 F.2d 1044, 1047 (1st Cir.1980). See also, Montrose v. Heckler, 579 F.Supp. 240 (D.Me. 1984); Morton v. Heckler, 586 F.Supp. 110 (W.D.N.Y.1984). This is because of the “requirement of Fed.R.Civ.P. 55(e) that a default judgment may issue against the United States only if ‘the claimant establishes his claim or right to relief by evidence satisfactory to the court’.”

However, the Secretary’s failure to file the requested memorandum or even explain _the failure after months of delay amounted to a failure under Rule 55(a) of the Federal Rules of Civil Procedure to “otherwise defend” the suit. Alameda, su pra. The Court can penalize a party’s failure to contribute a brief as permitted or even required by Section 405(g) and (h) and Rule 55(e) by considering the case on plaintiff’s brief. Alameda, supra.

In view of the above, defendant, the Secretary, is hereby precluded from filing her memorandum of law. The plaintiff is granted twenty (20) days to file her memorandum of law in support of her complaint.

IT IS SO ORDERED.

      . Rule 801.3(A) of the Rules of the United States District Court for the District of Puerto Rico provides: "The defendant (the Secretary of Health and Human Services) shall have sixty (60) days from service of process to answer the complaint and to file the transcripts of the administrative proceedings____”

        . 42 U.S.C. § 405(g) requires that "[a]s part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based.”

      . Although plaintiffs attorney states in the motion that he is filing as attorney for the Secretary, we understand that this is a clerical error.

      . Fed.R.Civ.P. 55(e) provides: “No judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes his claim or right to relief by evidence satisfactory to the court."


author: McLAUGHLIN, District Judge.

text:
    Abraham SARKIS and Razmik Mourad, Petitioners, v. Charles C. SAVA, District Director of the Immigration and Naturalization Service, Kevin Doyle, Deputy Assistant District Director for Detention and Deportation of the New York District of the Immigration and Naturalization Service, and Any Other Person Having The Said Petitioners In Custody, Respondents.
    No. 83 CV 2087.
    United States District Court, E.D. New York.
    Dec. 12, 1984.
    Edward Costikyan, New York City, of counsel; Paul, Weiss, Rifkin, Wharton & Garrison, New York City, for petitioners.
    Raymond J. Dearie, U.S. Atty. for the Eastern Dist. of N.Y., Brooklyn, N.Y., for respondents; Michael DiRaimondo, Asst. U.S. Atty., for the Eastern Dist. of N.Y., Brooklyn, N.Y., of counsel.
   MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

In this renewed petition for a writ of habeas corpus, Abraham Sarkis and Razmik Mourad challenge the July 17, 1984 decision by the Board of Immigration Appeals (the “Board”) denying their application for (1) political asylum under 8 U.S.C. § 1158(a); and (2) temporary withholding of deportation under 8 U.S.C. § 1253(h).

Background

The factual and procedural background of this case is set forth in this Court’s opinion in Sarkis v. Nelson, 585 F.Supp. 235 (E.D.N.Y.1984), and does not bear repetition here. Essentially, petitioners are two young Armenian Christians who fear that if they are returned to Iraq they will be persecuted for their refusal to join the military and/or the Baath Party. On January 6, 1984, following three separate hearings which took place over a one and one-half year period, the Board entered a final order of exclusion and deportation. Petitioners filed a petition for a writ of habeas corpus in this Court challenging the Board’s decision.

In an Order dated April 12, 1984, this Court remanded the case to the Board for further consideration and for the taking of further testimony. Following a remand hearing held on May 8, 1984, the Board rendered a decision on July 17, 1984, again concluding that petitioners failed to show that they qualify for asylum or for withholding of deportation. Petitioners then filed this renewed petition for a writ of habeas corpus.

Discussion

Asylum

To meet their burden of establishing entitlement to asylum, petitioners must, first of all, demonstrate that they are “refugees,” i.e., if they are returned to Iraq, they have “a well-founded fear of persecution” for one of the reasons enumerated in 8 U.S.C. § 1101(a)(42)(A). In its July 17, 1984 decision, the Board found that petitioners failed to carry this burden. I agree.

Even if petitioners had demonstrated this fear I could not disturb the Board’s denial of asylum. The Supreme Court has noted that “[mjeeting the definition of refugee, however, does not entitle the alien to asylum — the decision to grant a particular application rests in the discretion of the Attorney General under § 208(a).” INS v. Stevie, — U.S. -, 104 S.Ct. 2489, 2497 n. 18, 81 L.Ed.2d 321 (1984).

The Board has made clear that asylum is being denied in its discretion because petitioners fraudulently tried to enter the United States as transit without visa (“TRWOV”) aliens. Cf. Matter of Shirdel, Interim Decision 2958 (BIA 1984). This fraudulent entry scheme was not essential to the petitioners’ flight from Iraq. Indeed, they had already left Iraq and were residing in Greece before they tried to enter the United States. They made no attempt, however, to apply to the United States Embassy in Greece for asylum in the United States or to request asylum from the Greek government. In denying petitioners’ request for asylum, the Board concluded that no counterbalancing equities exist to justify petitioners’ entry in contravention of normal-immigration procedures. I cannot say that the Board’s decision constituted an abuse of discretion.

Withholding of Deportation

Applications for withholding of deportation are governed by 8 U.S.C. § 1253. The statute directs that the Attorney General “shall not deport” an alien to a country “if the alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1253(h)(1) (emphasis added). Thus, to establish entitlement to withholding of deportation, petitioners must show that if they are deported to Iraq there is a “clear probability” that they will be persecuted for one of the reasons enumerated in § 1253(h)(1). See Stevie, 104 S.Ct. at 2492. The Supreme Court has construed the “clear probability” standard tó require “that an application be supported by evidence establishing that it is more likely than not that the alien would be subject to persecution on one of the specified grounds.” Id. 104 S.Ct. at 2501. (emphasis added).

To carry their burden the petitioners may not rely on evidence of general persecution in their native country. Rather, petitioners must show that they will be “singled out for persecution.” Shamon v. INS, 735 F.2d 1015, 1017 (6th Cir.1984). Cf. Kashani v. INS, 547 F.2d 376, 379 (7th Cir.1977). In a case decided subsequent to Stevie, the Sixth Circuit has noted:

[T]he ‘clear probability’ test requires at least that an alien show that it is more likely than not that he as an individual will be subject to persecution if forced to return to his native land. A ‘clear probability’ of persecution cannot be proven by the introduction , of documentary evidence, not pertaining to the applicant individually, that depicts a general lack of freedom or the probability of human rights abuses in the alien’s native land ____ Instead, the alien must introduce sufficient credible evidence that supports his individual claim of persecution. Of course, self-serving statements are not enough. A ‘clear probability’ of persecution is ‘more than a matter of [an alien’s] own conjecture.’ :.. In sum, we believe the most reasonable standard is to require that an alien seeking the withholding of deportation ... must advance some credible evidence that authenticates his subjective allegations of persecution.

Dally v. INS, 744 F.2d 1191 at 1195-1196 (6th Cir.1984) (citations omitted). Interestingly, both Shamon and Dally involved the denial of applications for asylum and withholding of deportation sought by Iraqi citizens who feared persecution for their refusal to join the Baath Party.

The Board’s denial of petitioners’ applications to withhold deportation will be upheld if supported by substantial evidence. See McMullen v. INS, 658 F.2d 1312, 1316 (9th Cir.1981). In this Court’s April 12, 1984 opinion, I held that the Board’s denial was not supported by substantial evidence because the Board had failed to consider certain questions, including (1) whether petitioners’ refusal to join the Baath Party constituted a political opinion for which petitioners would be persecuted if returned to Iraq; (2) whether performance of military service would be contrary to petitioners’ genuine political, religious or moral convictions, or contrary to valid reasons of conscience; (3) whether the possible infliction of the death penalty upon petitioners would not be religiously or politically motivated; and (4) whether the death by torture of a third Sarkis brother supports petitioners’ claim that they will be singled out for persecution. Sarkis v. Nelson, 585 F.Supp. 235, 240 (E.D.N.Y.1984). After considering each of these questions in light of all the evidence, including that presented at the new hearing, the Board again concluded in its July 17, 1984 opinion that petitioners have failed to demonstrate a clear probability of persecution sufficient to warrant withholding of deportation.

First, the Board noted that while petitioners’ refusal to join the Baath Party constitutes an expression of political opinion, petitioners have failed to demonstrate that they will be subject to persecution because of their failure to join the party, if they return to Iraq. While the Board acknowledged the involvement of the Iraqi Government in acts of persecution against certain individuals because of their political beliefs, the Board noted that petitioners presented no evidence indicating that they would be singled out for persecution. Indeed, the only evidence of acts directed at the petitioners involved acts of harassment by students while petitioners were in school, or shortly thereafter. The Board concluded that petitioners failed to show that “a real threat of recruiting by violence normally occurs in any other contexts.” July 17 Board Opinion at 3.

Moreover, the Board noted that petitioners failed to demonstrate, or even to allege, that military service would be contrary to their political, religious, or moral convictions. Likewise, petitioners failed to demonstrate that the possible imposition of the death penalty would be affected by an improper motive. Petitioners have simply failed to show that discriminatory criminal penalties are imposed on Armenians or Christians.

Finally, the Board examined the evidence regarding the third Sarkis brother’s death which occurred in 1974 or 1975. The testimony revealed that no one knows the nature of Nejhdeh Sarkis’ death, including whether he was intentionally killed. No member of the Sarkis family left Iraq at the time of the brother’s death. Indeed, it was some five or six years after the brother’s death before petitioners left Iraq; and neither petitioner cited the brother’s death as a reason for leaving Iraq when he applied for political asylum. Accordingly, the Board found the brother’s death “too tenuous” to support a finding of clear probability of persecution.

The Board also considered petitioners’ claim, raised for the first time at the May 8, 1984 remand hearing, that they belonged to an Armenian health and sport club that was affiliated with the Dashnag Party. Petitioners had previously denied belonging to any organizations or political groups in Iraq. The Board concluded that:

Counsel for the applicants would have us speculate that all sympathizers, members, or former members of the Dashnag Party or the health club and their families would be in danger of their lives or freedom, if their membership were discovered. On this record, we are unable to come to that conclusion.

July 17 Board Opinion at p. 5.

Upon examining the record in its entirety, I conclude that petitioners have failed to meet their burden of showing that they will more likely than not be persecuted upon their return to Iraq. Accordingly, I find that the Board’s decision to deny petitioners’ application for withholding of deportation is supported by substantial evidence.

Conclusion

The renewed petition for a writ of habeas corpus filed by Abraham Sarkis and Razmik Mourad is denied.

SO ORDERED


text:
    Michael G. PERRY, Plaintiff, v. Joseph M. LARSON, individually and as Sheriff of Marinette County, and Marinette County, Defendants.
    Civ. A. No. 83-C-426.
    United States District Court, E.D. Wisconsin.
    Dec. 12, 1984.

      William C. Griesbach & Ralph Tease, Liebmann, Conway, Olejniczak & Jerry, Green Bay, Wis., for plaintiff.
    James A. Hanley, Milwaukee, Wis., for defendant Joseph M. Larson.
    Terry L. Campbell, Milwaukee, Wis., for defendant Marinette County.
   DECISION AND ORDER

REYNOLDS, Chief Judge.

This is an action under 42 U.S.C. § 1983. Federal jurisdiction is based on 28 U.S.C. § 1343. Presently before the Court are plaintiff's motions in limine (1) for the exclusion of an arbitral award for defendant Marinette County, and (2) for an order adopting the doctrine of municipal § 1983 liability adopted in Williams v. Butler, 746 F.2d 431 (8th Cir.1984). The former motion is granted, and the latter motion is denied.

Plaintiff Michael G. Perry was employed by the defendant Marinette County as a deputy sheriff until his discharge on September 27, 1982. The defendant Joseph M. Larson is the sheriff of Marinette County. Larson is an elected official and has full authority to hire and fire employees of the Marinette County Sheriff’s Department.

In February 1982, plaintiff issued a public statement that he would be a candidate for the office of sheriff of Marinette County on the Republican ticket in the upcoming September primary election. The sheriff’s post was held by Larson at the time.

On the night of July 29, 1982, plaintiff was seated in his patrol car, parked behind the municipal building in Coleman, Wisconsin. He was engaged in conversation with one Tim Powers, the local constable. At approximately 11:22 P.M., the sheriff’s dispatcher radioed plaintiff that there was a disturbance at Jack’s Standard Station in Middle Inlet, Wisconsin. Middle Inlet is approximately seventeen miles from Coleman.

Plaintiff did not leave Coleman immediately, but remained with Powers for a period of time. The length of time is a matter in dispute. The plaintiff ultimately left for Middle Inlet but discontinued his response to the call when a fellow officer, one Earl Wagner, radioed in to say that the situation was normal at the scene of the purported disturbance.

After an initial investigation, Sergeant Richard Lepkowski of the Marinette County Sheriff’s Department filed a complaint with defendant Larson, alleging that plaintiff had failed to respond promptly to a radio dispatch. Plaintiff discussed the matter in a meeting with Larson, Lepkowski, and several others. It was determined that plaintiff’s version of the events differed from Powers’ proffered version, particularly with respect to the length of time between the radio dispatch and plaintiff’s departure for Middle Inlet.

On September 27, 1982, approximately two months after the dispatch incident and two weeks after Larson defeated plaintiff in the primary election for sheriff, plaintiff was discharged. The purported grounds for the discharge were that plaintiff had failed to respond promptly to a dispatch, and that plaintiff had falsified a report with respect to that incident.

Plaintiff then filed a grievance under the collective bargaining agreement in effect between Marinette County and the sheriff’s department union. The grievance was taken to arbitration. At the hearing, plaintiff was represented by a union staff representative who was not an attorney. The union officers who were called as witnesses testified against him. However, plaintiff was allowed to submit exhibits and to examine and cross-examine the witnesses. The witnesses were sequestered at his instance. Additionally, defendant Larson gave testimony, and was questioned briefly with respect to plaintiff’s political opposition ■ to him in the primary election. On May 24, 1983, the arbitrator issued his ruling, in which he found that plaintiff had been discharged for cause.

Plaintiff moves that the arbitrator’s decision be excluded. He argues that certain matters pertinent to his theory of political retaliation were not brought to the arbitrator’s attention. Defendants argue that it would be highly prejudicial to their “but for” defense for the Court to exclude this evidence. They argue that the arbitral forum provided a high degree of procedural fairness, that the issue of political retaliation was raised before the arbitrator, and that the arbitrator was an experienced individual well qualified to entertain the issues involved in the proceeding.

Under McDonald v. City of West Branch, — U.S. -, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984), an arbitral decision preceding § 1983 litigation on the same cause of action is not given preclusive effect, but may be received in evidence and accorded such weight as the factfinder thinks it deserves. The decision to receive the decision is committed to the district court’s discretion. Among the factors to be considered in determining the weight to be given the decision are: (1) whether the collective bargaining agreement contains provisions that conform substantially to the provisions of federal civil rights legislation; (2) the degree of procedural fairness in the arbitral forum; (3) whether an adequate record with respect to the issue of discrimination was developed in the arbitral forum; and (4) the special competence of the arbitrator. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 40 n. 21, 94 S.Ct. 1011, 1015 n. 21, 39 L.Ed.2d 147 (1974).

In the present case, plaintiff alleges that shortly after he announced his candidacy, Larson stated to a third person that he intended to terminate plaintiffs employment at the first opportunity because plaintiff had challenged him. Plaintiff further alleges that in May 1982, Larson suspended him for five days without a hearing for purportedly failing to return promptly a proof of service card. He further alleges that while the dispatch incident was being investigated, he was contacted by a member of the Marinette County Law Enforcement Committee and told that if he withdrew from the sheriffs race, both the five-day suspension and the pending charge would be dropped and his record cleared, and that the county corporation counsel had approved this offer. While plaintiff discussed the foregoing alleged occurrences with his union representative prior to the arbitration hearing, the representative did not bring them before the arbitrator at the hearing.

Moreover, while the arbitrator was informed, through the examination of Larson, that plaintiff and Larson were political opponents, this fact arose in the context of Larson’s justification for the two-month delay between the dispatch incident and the discharge. Generally, the political retaliation issue at best received only cursory treatment at the hearing.

The Court has reviewed the transcript of the arbitration hearing and finds that the record developed there is seriously deficient with respect to plaintiff’s First Amendment claim. The question for the arbitrator was whether there was cause for the dismissal under the collective bargaining agreement. In the present action, a jury will be asked to determine whether the proffered justifications were a mere pretext for unconstitutional political retaliation, and if plaintiff comes forth with evidence to support the several allegations that were not brought before the arbitrator, the record before the jury will differ substantially from the record before the arbitrator. Indeed, the probative value of evidence of an arbitral finding of cause would be minimal, while there would be an attendant risk of confusing the jury if that evidence were received. I conclude that the arbitrator’s decision in this matter must be excluded.

However, the testimony of the witnesses at the arbitration hearing is admissible for such purposes as are contemplated by the Federal Rules of Evidence. The witnesses were under oath, and thus the parties should be permitted to make proper use of it here.

An amendment to the complaint raises the issue of Marinette County’s liability. Plaintiff has been granted leave to plead a claim under Wis.Stat. § 895.46, which would require Marinette County to indemnify Larson if a judgment were entered against him. He has also been granted leave to include a prayer for loss of future income and re-education expenses in. the event reinstatement is not an available remedy. Plaintiff sought these amendments after learning of this Court’s ruling in Conner v. City of Green Bay, No. 83-C-414 (E.D.Wis. Nov. 6, 1984) (order granting motion for directed verdict), in which the Court ruled that the plaintiff had failed as a matter of law to prove that her dismissal was ordered pursuant to a local custom or practice. At the pretrial conference in the present action, plaintiff advised the Court of authorities that would have militated in favor of a contrary ruling in Conner, and requested that the Court consider these authorities in the context of the present action. The Court treats this request as a motion in limine.

The parties agree that under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), municipal governments can be sued under 42 U.S.C. § 1983 for action that implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. The parties also agree that a municipal government may not be held liable for the torts of its officers and employees under the doctrine of respondeat superior, but that it can only be liable where the injury is inflicted by a policy or custom, whether the policy or custom be codified or made “by those whose edicts or acts may fairly be said to represent official policy.” Id. at 694. The parties dispute the meaning of the quoted language.

In plaintiff’s view, a single unlawful discharge may support an action against a local government if it is ordered by a person whose acts, pursuant to local policy, represent the local government’s final decision. For this proposition, plaintiff relies on Williams v. Butler, 746 F.2d 431 (8th Cir.1984). That case held that (1) if, according to a policy or custom established by a governing body, an official is delegated the authority, either directly or indirectly, to act on behalf of a governing body; and (2) if a decision made within the scope of the official’s authority ends the matter, then the acts of the official may fairly be said to be those of the local governing body. Plaintiff thus argues that he is relieved of having to show that Marinette County had a custom or practice of terminating employees who politically challenged their superiors, and that he need only show that pursuant to local policy, Larson was authorized to make personnel decisions, that his decision to fire plaintiff was within the scope of his authority, and that his decision was final.

While Monell has been interpreted in a similar fashion elsewhere, see, e.g., Rookard v. Health & Hospitals Corp., 710 F.2d 41, 45 (2d Cir.1983); Bower v. Watkins, 669 F.2d 979, 989-990 (5th Cir.1982), it has been interpreted more strictly in this circuit. Quite recently, the Seventh Circuit held that while there must exist at some level an official whose acts represent governmental policy, a custom, policy, or practice of a local government may not be inferred from a single incident of unconstitutional behavior by a local official. Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984). In this circuit, then, the focus is not upon whether there exists a policy of delegating final authority to local officials who may then exercise that authority in a manner that occasionally reaps an unlawful result. Rather, the focus is on whether the act or decision alleged to be unlawful in a particular case is part of a pattern of activity that can be characterized as a policy or custom. Plaintiff’s request that the Court follow the more lenient approach taken elsewhere is denied.

IT IS THEREFORE ORDERED that plaintiff’s motion in limine respecting evidence of the arbitral proceedings is granted with respect to the arbitrator’s decision.

IT IS FURTHER ORDERED that plaintiff’s motion in limine respecting the applicability of Williams v. Butler is denied.