author: MARY LOU ROBINSON, District Judge.

text:
    DANDEN PETROLEUM, INC., a Texas Corporation, and J.B. Watkins, Plaintiffs, v. NORTHERN NATURAL GAS COMPANY, Now named Internorth, Inc., a Delaware Corporation, Defendant.
    Civ. A. No. CA-2-85-86.
    United States District Court, N.D. Texas, Amarillo Division.
    Aug. 14, 1985.

      .Jody G. Sheets, Gassaway, Gurley, Sheets & Mitchell, Borger, Tex., for plaintiffs.
    W. Robert Brown, Orran Lee Brown, Miller, Keeton, Bristow & Brown, Houston, Tex., and Patrick J. McCarthy, Joseph F. Furay, InterNorth, Inc., Omaha, Neb., for defendant.
   ORDER

MARY LOU ROBINSON, District Judge.

Plaintiffs have moved the Court for a preliminary injunction, enjoining Defendant from violating the provisions of the take-or-pay clause in a contract for the sale of natural gas. An evidentiary hearing was held on July 16-18, 1985. The Court’s Findings of Fact and Conclusions of Law, in accordance with Fed.R.Civ.P. 52, appear in Parts I and II of this Order.

Defendant has asked the Court to stay this action and refer certain issues raised by the action, most notably the question of whether payments under this take-or-pay clause would violate the Natural Gas Policy Act, to the Federal Energy Regulatory Commission under the doctrine of primary jurisdiction. The Court’s discussion of this motion appears in Part III of this Order.

I. FINDINGS OF FACT

1. This action was brought by Plaintiffs Danden Petroleum, Inc., a Texas corporation and J.B. Watkins, a Texas resident (“Plaintiffs”), against Northern Natural Gas Company, a division of InterNorth, Inc., a Delaware corporation (“Inter-North”).

2. Plaintiffs’ claims are based on the “take or pay” provisions of a Gas Purchase Contract (“Contract”) dated May 14, 1974, under which InterNorth purchases from Plaintiffs natural gas produced from 14 wells located in Hansford County, Texas. Plaintiffs claim that InterNorth is in breach of such provisions.

3. The take or pay provisions of the Contract are found in Article III, as follows:

Section 2. Northern’s Obligation to Purchase Gas When Gas Production is NOT Prorated. Commencing with the date of initial delivery and continuing for a period of sixty (60) months, Northern agrees to purchase and receive from Seller’s interest in each producing and connected gas well, located on the acreage set forth on Exhibit A, a daily volume of gas, averaged over each Contract Year, equal to one million (1,000,000) cubic feet of gas for each three billion, six hundred fifty million (3,650,000,000) cubic feet of recoverable gas reserves.
At the end of said sixty (60) months, and continuing for the remaining term of this Contract, Northern agrees to purchase and receive from Seller’s interest in each producing and connected gas well, located on the acreage set forth on Exhibit A, a daily volume of gas, averaged over each Contract Year, equal to one million (1,000,000) cubic feet of gas for each seven billion, three hundred million (7,300,000,000) cubic feet of recoverable gas reserves.
If Seller’s interest in any gas well is less than one hundred percent (100%), Northern’s obligation to purchase the aforementioned volumes shall be reduced in proportion to the interest in said gas well or wells held by Sellers other than Seller hereunder.
The above volume is herein referred to as Seller’s Contract Volume. If Seller’s Contract Volume is not purchased and received and same was available for delivery hereunder, then Northern agrees to pay for the deficiency in purchases as herein provided.
Section 3. Northern’s Obligation to Purchase Gas When Gas Production IS Prorated. Northern, during each Com tract year, agrees to nominate to the proper authority, for Seller’s interest in each prorated gas well, a volume of gas equal to or in excess of the volume specified in Section 2 of this Article III; provided the volume nominated shall not exceed the ability of the well to produce. Should proration regulations require nominations to be made by producers, Northern will advise Seller of the volume of gas to be nominated for Seller’s interest in each such gas well, and Seller agrees to nominate such volume of gas for such interest.
The allowable volume of gas attributable to Seller’s interest in each prorated, producing and connected gas well shall be Seller’s Contract Volume and Northern, during such Contract Year, agrees to purchase and receive Seller’s Contract Volume from each such well. If such volume is not purchased and received and same was available for delivery hereunder from such well, then Northern agrees to pay for the deficiency in purchases as herein provided.

4. The gas wells involved in this action are subject to proration under the rules and regulations of the Texas Railroad Commission.

5. “Seller’s Contract Volume” is defined in Article I, § 11 of the Contract as “that volume of gas which Northern is obligated to purchase under Article III hereof.”

6. “Allowable” is defined in Article I, § 12 of the Contract as “a volume of gas allocated by any duly constituted authority having jurisdiction to any well under a valid order prorating gas production.”

7. InterNorth is presently purchasing and receiving from Plaintiffs each well’s ratable share of InterNorth’s market demand, based on the allowable assigned to each subject well by the Railroad Commission.

8. Make-up of deficient purchases and nominations relative to make-up are set forth in Article III of the Contract as follows:

Section Ip. Make-Up of Deficient Purchases. If, during any Contract year, Northern pays for gas which it does not receive, it shall have the right, during the next succeeding five (5) Contract years, to receive all or any part of such gas, without further payment therefor, by taking more than Seller’s Contract Volume during period of non-proration or, during proration, by following the procedure prescribed later in this section.
In order that Northern shall have a reasonable opportunity to make up deficient purchases during proration, both Northern and Seller agree to initiate and pursue diligently such actions as may be available, under the rules and procedures prescribed by the regulatory body having jurisdiction, to prevent the cancellation of allowables, or, in the event of cancellation, the reinstatement of same.
Northern may make-up gas during pro-ration as follows:
The nominating party will nominate a volume of gas specified by Northern which is equal to or in excess of the volume specified in Section 2 of this Article III; provided, the volume nominated shall not exceed one hundred twenty-five percent (125%) of the volume specified in said Section 2 nor shall it exceed the ability of the well or wells to produce. Northern’s obligation to purchase will be the lesser of the allowable volume of gas attributable to Seller's interest or 80% of the ability of Seller’s well or wells to produce. The percent of said obligation to be used as make-up gas against prior deficient purchases will be the percent by which the volume nominated exceeds the volume specified in said Section 2; provided, if the volume nominated equals the ability of the well to produce, twenty percent (20%) of the allowable shall be used as make-up gas.

9. Limitations on InterNorth’s obligation to purchase gas under the Contract are set out in Article III as follows:

Section 5. Limitations Upon Northern’s Obligation to Purchase Gas.
(a) Excess Delivery Capacity of Seller’s Wells. Northern’s obligation to purchase gas under this Contract is conditioned upon each well at all times having the physical and legal capability of delivering into the gathering line serving such well at the point of delivery against the operating pressure prevailing therein, a daily volume of gas equal to at least 125% of Northern’s obligation to purchase therefrom. If any such well does not have the physical and legal capability of so delivering, then the average daily volume which Northern shall be obligated to purchase from such well shall be reduced to 80% of the daily volume which such well is capable of so delivering.

10. Section 2 of Article XIV of the Contract provides as follows:

Section 2. Regulatory Jurisdiction. This Contract is subject to all valid legislation, both State and Federal, and to all valid present and future orders, rules and regulations of duly constituted authorities having jurisdiction.

II. CONCLUSIONS OF LAW

1. The purpose of a preliminary injunction is to prevent irreparable injuries so as to preserve the trial court’s ability to render a meaningful decision on the merits. Mississippi Power & Light Co. v. United Gas Pipe Line, 760 F.2d 618 (5th Cir.1985); Canal Authority v. Callaway, 489 F.2d 567, 576 (5th Cir.1974).

2. It is well established that a preliminary injunction is “an extraordinary and drastic remedy.” Canal Authority v. Callaway, supra, 489 F.2d at 573; Enterprise International, Inc. v. Corporacion Estatal Petrolera Ecuatoriana (“CEPE”), 762 F.2d 464, 472 (5th Cir.1985).

3. In order to secure a preliminary injunction, the Plaintiffs have the burden of proving four elements:

(1) a substantial likelihood of success on merits;
(2) a substantial threat that the Plaintiffs will suffer irreparable injury if the injunction is not issued;
(3) that the threatened injury to the Plaintiffs outweighs any damage the injunction may cause to InterNorth; and
(4) that the injunction will not disserve the public interest.

Enterprise International, Inc. v. CEPE, supra; Mississippi Power & Light Co. v. United Gas Pipe Line, supra; Interox America v. PPG Industries, Inc., 736 F.2d 194 (5th Cir.1984); Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384 (5th Cir.1984); Meridian v. Algernon Blair, Inc., 721 F.2d 525 (5th Cir.1983); Commonwealth Life Ins. Co. v. Neal, 669 F.2d 300 (5th Cir.1982); Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328 (5th Cir.1981); Dallas Cowboy Cheerleaders v. Scoreboard Posters, Inc., 600 F.2d 1184 (5th Cir.1979); Canal Authority v. Callaway, supra.

4. The movant on an application for preliminary injunction “has a heavy burden of persuading the district court that all four elements are satisfied.” Hardin v. Houston Chronicle Publishing Co., 572 F.2d 1106, 1107 (5th Cir.1978); Enterprise International, Inc., v. CEPE, supra.

5. A preliminary injunction “should only be granted if the movant has clearly carried the burden of persuasion on all four ... prerequisites,” since the “decision to grant a preliminary injunction is to be treated as the exception rather than the rule.” Mississippi Power & Light Co. v. United Gas Pipe Line, supra, 760 F.2d at 621.

6. If the movant does not succeed in carrying this burden on any one of the four prerequisites, a preliminary injunction may not issue. Enterprise International, Inc. v. CEPE, supra; Clements Wire & Mfg. Co. v. NLRB, 589 F.2d 894, 897 (5th Cir.1979). When the movant fails to prove that, absent the injunction, irreparable injury will result, the preliminary injunction should be denied. Enterprise International, Inc. v. CEPE, supra; Canal Authority v. Calloway, supra, 489 F.2d at 574.

7. Plaintiffs have failed to carry their burden of persuasion on the first element of the preliminary injunction analysis. Plaintiffs have failed to demonstrate a substantial likelihood of success on the merits of their claim that InterNorth is in breach of the take or pay provisions of the Contract.

8. Pursuant to Chapter 86 of the Texas Natural Resources Code, Tex.Nat.Res.Code Ann. §§ 86.001 et seq., the Texas Railroad Commission presides over a comprehensive body of conservation laws and regulations designed to ensure the production and use of natural gas in accordance with market demand and to prevent its overproduction or waste.

9. The Railroad Commission Market Demand Order, Special Order File No. 20-68,-382, Rule 051.02.99.001,16 Tex.Admin.Code § 3.91, requires InterNorth to nominate monthly to the Railroad Commission a volume of gas equal to the quantity of gas for which InterNorth is the ultimate consumer and the quantity nominated by its downstream purchasers based on a firm forecast of that purchaser’s actual demand. § (d). In 1982, the Railroad Commission informed InterNorth that it was in violation of the Market Demand Order and required Inter-North to take remedial action to bring its nominations into compliance.

10. Pursuant to § (e) of the Market Demand Order, InterNorth must ratably apportion its nominations on Form T-3 and its actual take from all gas wells connected to its systems so that takes from various gas producing properties are made without discrimination in favor of one producer or person as against another in the same field, and without unjust or unreasonable discrimination as between fields.

11. Pursuant to § (e)(1) of the Market Demand Order, InterNorth must base its nominations on each well’s deliverability as reflected by the well’s Form G10 on file with the Commission, and actual takes of gas by InterNorth must be based on the Commission’s assigned allowable for each well.

12. Violation of the Market Demand Order is subject to a penalty of $1,000.00 per day for each violation, pursuant to Tex. Nat.Res.Code Ann. § 86.222.

13. The Railroad Commission is a duly constituted authority having jurisdiction and assigns allowables to each of Plaintiffs’ wells under the Market Demand Order, a valid order prorating gas production, which limits the volume each well is permitted to produce and which InterNorth is permitted to take monthly.

14. Each of Plaintiffs’ wells lacks the ability to produce more than the Commission allowable assigned to that well and lacks the legal capability of delivering more than that allowable within the meaning of Article III, Sections 3, 4, and 5 of the Contract.

15. Under the terms of the Contract, in conjunction with the Market Demand Order, InterNorth is required to nominate and take from Plaintiffs’ wells no more than the allowable assigned to each well by the Railroad Commission and, under Sections 4 and 5 of Article III, its obligation to purchase equals 80% of that allowable. Plaintiffs have failed to demonstrate a substantial likelihood of success on the merits of their claim that InterNorth is in breach of such obligation.

16. Plaintiffs have failed to demonstrate a substantial threat that they will suffer irreparable injury if the injunction is not issued.

17. It is not so much the magnitude of the harm claimed by Plaintiffs but the “irreparability that counts for purposes of a preliminary injunction.” Canal Authority v. Calloway, supra, 489 F.2d at 575. “The key word ... is irreparable.” Morgan v. Fletcher, 518 F.2d 236, 240 (5th Cir.1975). See also, Enterprise International, Inc. v. CEPE, supra.

18. An injury is irreparable if it cannot be undone through monetary relief. Injuries which can be compensated by money damages at a later time are not irreparable and do not warrant the extraordinary remedy of an injunction. Enterprise International, Inc. v. CEPE, supra; Interox America v. PPG Industries, Inc., supra; Deerfield Medical Center v. City of Deerfield Beach, supra; Spiegel v. City of Houston, 636 F.2d 997 (5th Cir.1981). Loss of income during the pendency of a suit is not irreparable injury for which an injunction will lie. Aldrich v. Skillern & Sons, Inc., 493 F.Supp. 1073 (N.D.Tex.1980).

19. Plaintiffs’ claim of injury from denial of the use and enjoyment of the proceeds of production is a claim of monetary injury, which can be calculated and compensated in full by a judgment for money damages at a later time if Plaintiffs prevail at trial on the merits, and accordingly is not an irreparable injury.

20. Plaintiffs have failed to demonstrate a substantial threat that they will suffer drainage of their reserves in the absence of an injunction, that any drainage would result in irreparable harm not compensable in money damages if Plaintiffs prevail at trial, or than an injunction would in any respect prevent any drainage.

21. Plaintiffs have failed to establish that the threatened injury to them in the absence of an injunction outweighs any damage the injunction might cause to InterNorth. Plaintiffs’ primary injury claimed in the absence of an injunction is monetary—the denial of the use and enjoyment of the funds it asserts a right to receive from InterNorth each month. If InterNorth is forced to make such payments, it too would suffer the same harm. Where the harms are equivalent, an injunction is improper. Apple Barrel Productions, Inc. v. Beard, supra. In addition, an injunction would cause further injury to InterNorth by exposing it to the risk that it will not be able to recover such payments from Plaintiffs out of future production within the five-year make-up period.

22. Plaintiffs have failed to demonstrate that the injunction would not dis-serve the public interest. The public has no interest in enhancing the flow of funds to Plaintiffs each month from InterNorth. An injunction would disserve the public interest by causing InterNorth to nominate or take gas in excess of the Market Demand Order and the true demand for such gas, and may result in higher prices for gas to the downstream consumers of such gas. The Mississippi Power & Light Co. court saw the latter as a “vital” public interest.

23. For these reasons, Plaintiffs’ Application for a Preliminary Injunction is denied.

III. THE MOTION TO REFER TO FERC

The demands and claims of the Plaintiffs raise the question of whether enforcement of the take-or-pay provisions of the gas purchase contract at issue in this case would violate the price ceilings established by Title I of the Natural Gas Policy Act of 1978, 15 U.S.C. §§ 3301 et seq. InterNorth argues that this issue is within the primary jurisdiction of the FERC and involves public policy issues that should be resolved, at least in the first instance, by the Federal Energy Regulatory Commission.

The Regulatory Scheme Established by the NGPA

A brief discussion of the regulatory background against which this action operates is necessary for resolution of this Motion. By enacting the NGPA in 1978, Congress established a comprehensive regulatory scheme, including price ceilings, for the wholesale gas market consisting of “first sales” of natural gas. Prior to that time, between 1938 and 1978, the Federal Power Commission (“FPC”) had regulated sales of natural gas in interstate commerce pursuant to the Natural Gas Act, 15 U.S.C. § 717 et seq. (“NGA”). That statute was enacted out of concern that the monopoly power of interstate pipelines was harming the welfare of natural gas consumers. It authorized the FPC to establish “just and reasonable” rates for gas sales at the downstream end of interstate pipelines. The United States Supreme Court, in Phillips Petroleum Company v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954), held that the NGA required the FPC to take jurisdiction over independent gas producers as well and to examine the reasonableness of the rates they charged to interstate pipelines. Over the years, the FPC variously applied “cost of service,” “area rate,” and “national rate” approaches to calculate the rate schedules for sales of natural gas by producers to pipelines. Largely because of the insufficiency of these measures, Congress enacted the NGPA to allow the FPC and its successor, the FERC, to continue to regulate natural gas sales from interstate pipelines to their customers but also to specify maximum lawful prices that may be charged for all first sales of natural gas in eight defined categories of natural gas production. See Public Service Commission v. Mid-Louisiana Gas Company, 463 U.S. 319, 326-332, 103 S.Ct. 3024, 3029-3032, 77 L.Ed.2d 668, 676-679 (1983) (“Mid-Louisiana").

The NGPA has been described as “a comprehensive statute to govern future natural gas regulation.” Note, Legislative History of the Natural Gas Policy Act, 59 Tex.L.Rev. 101, 116 (1980), quoted by the Supreme Court in Mid-Louisiana, supra, 463 U.S. at 331, 103 S.Ct. at 3031, 77 L.Ed.2d at 679. Title I of the NGPA establishes eight categories of natural gas production and proclaims a method for calculating an appropriate ceiling price within each category. Section 102 concerns “new natural gas and certain natural gas produced from the Outer Continental Shelf.” 15 U.S.C. § 3312. Section 103 covers “new, onshore production wells.” 15 U.S.C. § 3313. Section 104 regulates “natural gas committed or dedicated to interstate commerce on the day before the date of the enactment of ...” the NGPA. 15 U.S.C. § 3314. Section 105 covers “sales under existing intrastate contracts.” 15 U.S.C. § 3315. Sales under “rollover contracts” are within Section 106. 15 U.S.C. § 3316. “High-cost natural gas” is regulated by Section 107. 15 U.S.C. § 3317. Section 108 covers “stripper well natural gas.” 15 U.S.C. § 3318. Section 109 concerns “any natural gas which is not covered by any maximum lawful price under any other lawful section of ...” the statute. 15 U.S.C. § 3319. Certain types of gas under §§ 102, 103 and 105 were decontrolled effective January 1, 1985, but such deregulation does not affect the gas involved in this action. Section 504(a) renders it unlawful for any person to sell natural gas at a first sale price in excess of these maximum lawful prices. 15 U.S.C. § 3414(a).

Relevance of the NGPA to This Action

Plaintiffs’ sale of gas to InterNorth under the Contract constitutes a “first sale” of gas within the meaning of the NGPA. 15 U.S.C. § 3301(21). All gas transferred under the Contract is classified under either Section 104 or 108 of the NGPA, 15 U.S.C. §§ 3314 and 3318, which establish a maximum lawful price ceiling for such gas. The term “sale” is defined by the statute to mean “any sale, exchange, or other transfer for value.” 15 U.S.C. § 3301(20).

InterNorth maintains that any effort by Plaintiffs to obtain a price for gas in excess of the NGPA ceiling prices is unlawful under § 504(a) of the statute. 15 U.S.C. § 3414(a).

Merits of the Motion

In Post v. Perry Gas Transmission, 616 F.Supp. 1, No. 2-83-158 (N.D.Tex. Dec. 15, 1983), this Court discussed the identical issue of whether referral to FERC under the doctrine of primary jurisdiction was appropriate. The Court concluded that the question of whether enforcement of take- or-pay clauses in natural gas sales contracts would violate the NGPA should be referred to FERC, and that case was duly referred. Since that time, other courts have divided on the question of referral. Compare Sid Richardson Carbon & Gasoline Co. v. InterNorth, 595 F.Supp. 497 (N.D.Tex.1984) (denying referral), with Gulf Oil Corp. v. Tenneco, Inc., 608 F.Supp. 1493, 1498 (E.D.La.1985) (granting referral).

For present purposes, the most significant case since Post is Koch Industries, Inc. v. Columbia Gas Transmission Corp., Civ. No. 83990 (E.D.La.), in which Columbia, an interstate natural gas pipeline, was sued by Koch Industries, a natural gas producer, for alleged breach of gas purchase contracts between the two companies.

The lawsuit arose out of the following course of events. Alleging diminished demand for its gas, Columbia invoked the force majeure provisions of its gas contracts as the basis for reducing the level of its gas purchases and its gas purchase costs. In an effort to achieve this result, Columbia refused to continue to pay for certain minimum volumes of gas not taken from its suppliers, as required under the take-or-pay clauses of its gas purchase contracts.

After initiating this policy, Columbia filed a petition with the Commission in FERC Docket No. CI83-304, for a declaratory order that the enforcement of gas producers’ demands that the take-or-pay provisions in their contracts with Columbia be enforced would be unlawful and violate the NGPA.

Koch filed a breach of contract action in federal court in Louisiana. In that suit, Koch alleged that Columbia’s actions to reduce its gas purchase costs violated the terms of four gas purchase contracts between Koch and Columbia. Among other things, Koch alleged that the contracts required Columbia to take and pay for certain minimum volumes of gas or pay for them in any event. Koch sought specific performance.

Referring to its related filing at FERC and other proceedings at the Commission, Columbia requested that the district judge refer Koch’s lawsuit to the Commission under the doctrine of primary jurisdiction. The district judge denied Columbia’s request and its request to permit an interlocutory appeal of the denial. Columbia then petitioned the Fifth Circuit to issue a supervisory writ of mandamus or prohibition to require the district court to refer the relevant issues to the Commission.

The Fifth Circuit asked FERC for its views as an amicus curiae in the case and FERC complied. In re Columbia Gas Transmission Corp., No. 84-3282 (5th Cir. June 19, 1984) (Opening Memorandum Brief of FERC). In relevant part, the Commission said:

1. The Court has requested a report on the “present status” of Columbia’s requests in FERC Docket Nos. CI83-304 and GP84-36. At present, no formal action has been taken by the Commission in these or other relevant dockets at the Commission. The requests in these dockets raise difficult and troublesome questions concerning the proper exercise of Commission jurisdiction. Indeed, the Commission has not yet determined the permissible scope of action which it may take in these dockets____ At this point, the Commission cannot project any probable date on which action will be taken in this regard.
2. The Court has also inquired whether this case is now appropriate for the application of the doctrine of primary jurisdiction. We submit that, at this stage, it is not.
a. Because the Commission has not yet reached a decision as to how to proceed in the Commission dockets noted supra, referral to the Commission of any of the issues now involved in the proceeding before the district court would be inappropriate. As this Court has stated, primary jurisdiction is a “flexible doctrine” to be applied at the “discretion” of the court. There is no reason for the Court to overrule the lower court’s exercise of that discretion where, as here, the agency has not yet initiated any proceedings in the relevant area.
b. Denying Columbia’s petition for mandamus would not impede proper disposition of the pertinent issues. It is thus inaccurate to say, as Columbia does, that “the lower court has refused [the Commission] the opportunity to resolve issues that are critical to [its] regulation, such as the maximum lawful price issue.” The Commission is free to proceed at its own reasonable pace in dealing with the novel and intractable issues in the related dockets pending before it.
Acting affirmatively on Columbia’s petition for mandamus or prohibition is particularly inappropriate here since it appears that Columbia’s petition is an attempt by the company to compel the Commission to state prematurely its substantive views in this area. It hardly needs saying that it is for the Commission—not Columbia—to decide when, how and to what extent the agency will act on matters in the gas purchasing area. “Given the complexity and difficulty of the legal and economic issues generated by [oversupplies] on an extensive pipeline system,” the Commission must be able to proceed at its own pace so long as that pace is a reasonable one.

Id. at 4-7 (citations omitted).

In unpublished orders, the Fifth Circuit denied Columbia’s petition and a petition by Tenneco involving the same issues. In re Columbia Gas Transmission Corp., No. 84-3282 (5th Cir. July 30, 1984); In re Tenneco, Inc., No. 84-4074 (5th Cir. July 30, 1984). Both petitions were denied because no showing had been made that the requested writs were necessary or appropriate in aid of the Fifth Circuit’s jurisdiction. See 28 U.S.C. § 1651.

In the year since FERC filed its amicus brief in Columbia Gas Transmission, it has moved forward in at least one area of the take-or-pay controversy. On April 10, 1985, the Commission issued a Statement of Policy and Interpretive Rule in which it determined that “[a] first seller of natural gas that receives payments as consideration for amending or waiving the take-or-pay or similar minimum payment provisions of a contract for the first sale of natural gas is not in violation of § 504(a) of the NGPA.” Regulatory Treatment of Payments Made in Lieu of Take-or-Pay Obligations, Docket No. PL85-1-000 (Federal Energy Regulatory Commission April 10, 1985). The Commission expressly recognized the question of “whether prepayments to a producer for gas not taken but which cannot be made up by the purchaser must be added to payments made to that producer for gas taken by the pipeline for purposes of determining the producer’s compliance with the maximum lawful prices set out in Title I of the NGPA,” and said that “[t]he present policy statement does not speak to this issue.”

This Statement of Policy and Interpretive Rule illustrates the benefit of the primary jurisdiction doctrine. In reaching its conclusion, FERC relied on its knowledge of how certain payments are accounted for by pipelines for ratemaking purposes, and its previous experience with electric utilities that entered into long term contracts for the purchase of coal. This exemplifies the exercise of agency expertise in an area outside the conventional experience of judges.

At the time Post was decided, referral to the Commission under the doctrine of primary jurisdiction appeared appropriate. Indeed, the Court still believes that this is an area in which FERC needs to exercise its primary jurisdiction. Nevertheless, developments since the Post decision counsel that the instant motion should be denied.

One, the Commission’s brief in Columbia Gas Transmission indicates that the Commission does not want these referrals. Application of the doctrine of primary jurisdiction is inappropriate where the administrative agency is manifestly opposed to the referral.

Two, “the court must always balance the benefits of seeking the agency's aid with the need to resolve disputes fairly yet as expeditiously as possible.” Mississippi Power & Light Co. v. United Gas Pipe Line, 532 F.2d 412, 419 (5th Cir.1976). Some 18 months of inaction have elapsed since this Court referred the Post case to FERC. In the normal course of business, the ease would have already been tried and a judgment entered. These plaintiffs should not be similarly sentenced to transportation. As the Commission proceeds “at its own reasonable pace,” producers and royalty owners suffer through unpredictable cash flows and are victimized by breaches of contract undertaken as deliberate, calculated business decisions. The producers, moreover, cannot abandon their obligations under the contracts without the Commission’s permission, yet must maintain production in paying quantities to preserve the underlying oil and gas leases. Danden’s royalty owners have already begun making inquiries as to whether the wells are being economically operated. Danden itself is a small producer. Its cash flow from this contract varies from $5000 to $120,000 per month, depending only on InterNorth’s day-to-day decisions as to how much gas it will buy and from which wells. The need for an expeditious resolution of the contractual dispute is evident and, in this case, outweighs the considerations in favor of applying the primary jurisdiction doctrine.

Finally, the take-or-pay issues are already before the Commission. As the district judge in Columbia Gas Transmission said, “If the Federal Energy Regulatory Commission takes some sort of action, then I think we can look at the situation at that time and see whether we ought to take any other action”—a comment cited with approval in FERC’s amicus brief.

The Motion to Refer is DENIED.

It is so ORDERED.


source: Caselaw Access Project

author: LONGOBARDI, District Judge.

license: Public Domain

text:
    KRUPP INTERNATIONAL, INC., a Delaware corporation, Plaintiff, v. YARN INDUSTRIES, INC., a foreign corporation, Defendant and Counterclaimant, v. KRUPP INTERNATIONAL, INC., a Delaware corporation, Counterclaim Defendant and Counterclaim Third-Party Plaintiff, v. PLATT SACO LOWELL CORPORATION, Counterclaim Third-Party Defendant. FRIED KRUPP, GMBH, Plaintiff, v. PLATT SACO LOWELL CORPORATION, Defendant.
    Civ. A. Nos. 83-357 LON, 83-430 LON.
    United States District Court, D. Delaware.
    Aug. 14, 1985.

      Charles Gruver, III, of Bayard, Handel-man & Murdoch, Wilmington, Del. (Peter Kurshan, [argued] of Herzfeld & Rubin, New York City, of counsel), for plaintiff, counterclaim defendant and counterclaim third-party plaintiff Krupp Intern., Inc.
    James J. Woods, Jr., of Connolly, Bove, Lodge & Hutz, Wilmington, Del., for defendant and counterclaimant Yarn Industries, Inc.
    Edmund N. Carpenter, II, Thomas A. Beck, of Richards, Layton & Finger, Wilmington, Del. (Mark R. Holmes, Greenville, S.C. [argued], and Wesley M. Walker, of Leatherwood, Walker, Todd & Mann, Greenville, S.C., of counsel), for third-party defendant Platt Saco Lowell Corp.
   OPINION

LONGOBARDI, District Judge.

The Plaintiff, Krupp International, Inc. (“Krupp”), brought this action to compel Yarn Industries, Inc. (“Yarn”) to pay certain amounts due under a contract for sale of a yarn manufacturing system. Yarn has denied liability and has counterclaimed against Krupp seeking compensation for losses incurred due to the failure of the yarn manufacturing equipment to operate properly. Krupp has impleaded Platt Saco Lowell Corporation (“Platt Saco”) as a third-party Defendant on the counterclaim. Currently before the Court is a motion by Platt Saco to dismiss Krupp’s claims against it or, alternatively, to transfer this action to the United States District Court for the District of South Carolina.

BACKGROUND

On August 16, 1978, Krupp and Yarn entered into a contract under which Krupp agreed to sell Yarn certain manufacturing equipment to be installed in a plant being erected by Yarn. Yarn paid Krupp 50% of the purchase price as a down payment. The agreement provided that Yarn would pay the balance by December 31, 1978, and that Krupp would deliver the equipment by the same date. Krupp and Yarn subsequently agreed to extend the time for delivery and final payment to March, 1979.

Under the contract, Krupp was obligated to install the yarn manufacturing equipment. In January, 1979, however, the assets of Krupp’s Textile Manufacturing Division (“TMD”) were sold to Hergeth, Inc., a predecessor of Platt Saco, and virtually all of the division’s employees became Hergeth employees. As a result of the sale and transfer of employees, Hergeth undertook to install the equipment.

Installation was completed in December, 1979. Yarn was dissatisfied with the operation of the system and complained to Krupp. After efforts to resolve the complaints proved unavailing, Yarn notified Krupp on July 16,1981, that it revoked any acceptance of the system and demanded a refund of the purchase price. Krupp has refused to take back the system or refund the purchase price.

Although the dispute is based on a straightforward breach of contract claim, its procedural history is complex and has involved decisions by three federal district courts and two courts of appeals. In late October, 1981, Yarn notified Krupp that it intended to sue Krupp in South Carolina. At Krupp’s request, Yarn sent Krupp a copy of the complaint it intended to file. On November 13, 1981, Krupp filed suit against Yarn in the United States District Court for the Southern District of New York. Upon receiving notice of Krupp’s suit in New York, Yarn brought suit against Krupp in the United States District Court for the District of South Carolina.

The New York court dismissed Krupp’s action on the grounds that venue was improper in New York. This dismissal was affirmed by the Second Circuit. Krupp Intern., Inc. v. Yarn Industries, Inc., 714 F.2d 114 (2d Cir.1982). Subsequently, on June 10, 1983, Krupp filed this action in Delaware.

Krupp’s complaint contains three counts. The first count seeks additional payment allegedly due as the result of an oral modification of the yarn equipment contract. The second count seeks interest due as the result of a delay in payment by Yarn. The third count seeks a declaratory judgment that Krupp fully performed its agreement with Yarn.

Yarn moved this Court to transfer the Delaware action to South Carolina while Krupp moved the South Carolina court to dismiss that action. The district court in South Carolina ruled that Yarn was collaterally estopped from maintaining the South Carolina action by the decision of the New York court. The South Carolina court’s decision was based on a choice of forum clause contained in the contract between Krupp and Yarn. This clause provides that the forum for resolving disputes between the parties would be, at Krupp’s option, either Essen or Bremmen, or “the Court having jurisdiction for the domicile of [Krupp’s] agent or for the domicile of the purchaser.” The New York court interpreted “domicile” to mean the places of incorporation of Krupp and Yarn, which are Delaware and South Carolina respectively. The New York court accordingly held that venue was improper in New York. The South Carolina court interpreted the New York decision to mean that the New York court had upheld the validity and enforceability of the choice of forum clause which empowers Krupp to choose either Delaware or South Carolina at its sole option. The court held that Yarn was collaterally estopped from relitigating the validity of the clause or from disputing Krupp’s choice of forum in Delaware. The district court therefore dismissed the South Carolina action.

In ruling on Yarn’s motion to transfer this action from Delaware to South Carolina, Judge Stapleton agreed with the South Carolina district court that Yarn was collaterally estopped from relitigating the validity or enforceability of the choice of forum clause. Citing Plum Tree, Inc. v. Stockment, 488 F.2d 754 (3d Cir.1973), however, he held that the choice of forum clause was not, by itself, dispositive of Yarn’s motion to transfer. Rather, the choice of forum clause only eliminated Yarn’s convenience as a factor in ruling on the motion to transfer. If other factors, such as the convenience or availability of-third-party witnesses, weighed in favor of South Carolina, the action could still be transferred there. Judge Stapleton went on to hold that under the circumstances at that time, the considerations favoring South Carolina as a forum were not sufficient to justify transfer. He explicitly left open the possibility that changes in circumstances might justify transfer at a later date.

Subsequently, the Fourth Circuit reversed the South Carolina district court’s ruling on the collateral estoppel effect of the New York decision. Yarn Industries v. Krupp Intern., Inc., 736 F.2d 125 (4th Cir.1984). The Fourth Circuit held that the New York court did not have to rule on the validity of the choice of forum clause. Under the general venue statute, a diversity action may be brought only in the judicial district where all plaintiffs reside or all defendants reside or in the district in which the claim arose. The “residence” of a corporation for venue purposes is its state of incorporation. Thus, in the absence of the choice of forum clause, venue would only be proper in Delaware or South Carolina. The New York court then went on to construe the choice of forum clause to allow venue only in Delaware or South Carolina. The Fourth Circuit held that the New York court had no reason to consider the validity or enforceability of the choice of forum clause since, whether it was valid or not, venue was improper in New York. Thus Yarn was not collaterally estopped from litigating the validity of the choice of forum clause because that issue had not been decided by the New York court.

The Fourth Circuit went on to hold that the South Carolina court should have taken evidence on Yarn’s claim that the choice of forum clause was superseded by another clause in the contract, a choice of law clause which specifies that “[t]his agreement is subject to South Carolina law.” Although this choice of law clause makes no reference to choice of forum, affidavits were submitted by both Krupp and Yarn which stated that the parties to the negotiations, all non-lawyers, understood the clause to mean that all disputes would be resolved in South Carolina courts. The South Carolina district court excluded these affidavits as violating the parol evidence rule. The Fourth Circuit reversed on this issue also and remanded the case to the district court for a determination of the intent of the parties in inserting the choice of law clause and for a determination of the validity of the choice of forum clause. These issues are currently pending before the district court in South Carolina.

Along with its motion to transfer this action from Delaware, Yarn filed a counterclaim against Krupp seeking compensation for losses due to the failure of the system to operate properly and refund of the purchase price. In June, 1984, Krupp impleaded Platt Saco as a third-party Defendant to Yarn’s counterclaim contending that any damages suffered by Yarn are due to the wrongdoing of Platt Saco’s predecessor, Hergeth, in failing to install and maintain the equipment properly and failing to properly train and supervise Yarn’s employees. Platt Saco has moved to transfer or dismiss Krupp’s claims against it.

MOTION TO TRANSFER

Title 28, section 1404(a) of the United States Code allows the Court to transfer a lawsuit to any other district where it might have been brought if the transfer provides greater convenience for the parties and witnesses and serves the interests of justice. It is undisputed that Krupp could have brought this action in South Carolina.

In ruling on a motion to transfer, Plaintiff’s choice of forum is a “paramount consideration” and the moving party has the burden of demonstrating that a balancing of proper interests weighs strongly in favor of transfer. Shutte v. Armco Steel Corporation, 431 F.2d 22 (3d Cir. 1970). When, however, the plaintiff has brought suit in a forum which is not its “home turf” and which has no connection with the facts of the lawsuit, the convenience to the plaintiff of litigating in its own choice of forum is not as great. Consequently, it will be easier for the Defendant to show that the balance of convenience favors transfer. Pall Corp v. Bentley Laboratories, Inc., 523 F.Supp. 450, 452 (D.Del.1981); General Instrument Corp. v. Mostek Corp., 417 F.Supp. 821, 822-23 (D.Del.1976); Burroughs Wellcome Co. v. Giant Food, Inc., 392 F.Supp. 761, 763 (D.Del.1975).

In support of its motion to transfer, Platt Saco points out that this action has no connection at all to Delaware other than the fact that Krupp and Platt Saco are incorporated in Delaware. None of the negotiations over the contract took place in Delaware, none of the parties or witnesses reside here, none of the documents are here and none of the equipment was ever delivered here.

In contrast, South Carolina is the most convenient forum for the parties and witnesses. All of the key negotiations concerning the contract took place in South Carolina or Charlotte, North Carolina, which is about ten miles from the South Carolina border. The equipment was delivered and installed in South Carolina and all of the maintenance took place there. All of Platt Saco’s and Hergeth’s offices, records and employees are in South Carolina. Also, many former employees of Krupp, Hergeth and Yarn live in or near South Carolina. Unlike Yarn, Platt Saco never agreed with Krupp to have disputes settled in Delaware or any other forum outside of South Carolina.

Platt Saco also argues that the interests of justice would best be served by transfer to South Carolina. The contract between Krupp and Yarn explicitly provides that it is governed by South Carolina law. It seems clear that Krupp’s claims against Platt Saco, based on the activities of Hergeth, a South Carolina corporation, in maintaining machinery in South Carolina would also be governed by South Carolina law. Platt Saco argues that a federal court in South Carolina would be better able to apply South Carolina law. Further, Platt Saco points to a number of former employees whose attendance in Delaware could not be compelled but who would be within the subpoena power of a South Carolina court.

Platt Saco also attempts to argue that South Carolina is significantly more convenient for Yarn than Delaware. It refers the Court to Yarn’s briefs in support of its motion to transfer which was denied by Judge Stapleton. Yarn, on the other hand, has not joined in Platt Saco’s motion to transfer and has taken no position on this motion. In addition, Judge Stapleton held that Yarn is collaterally estopped from using its own convenience as a basis for a motion to transfer. Even accepting the Fourth Circuit’s position that collateral estoppel is not applicable, the interpretation of the choice of forum clause depends on the results of an evidentiary hearing currently pending before the South Carolina district court. (In view of this Court’s resolution of the issues below, it is unnecessary to consider Yarn’s convenience as a basis for transfer.)

In response, Krupp argues that Platt Saco, as a third-party Defendant, lacks standing to attempt to transfer this action to South Carolina. Even if Platt Saco has standing to attempt to transfer this case, Krupp contends that Platt Saco has failed to show sufficient additional convenience to warrant transfer. Finally, Krupp contends that any added convenience for Platt Saco is outweighed by additional inconvenience for Krupp’s witnesses in New York and Europe.

Krupp cites no authority for its contention that a third-party defendant lacks standing to attempt to transfer an action nor is there any basis in the statutory language for such a restriction. The policy considerations for granting a motion to transfer by a party to the original action seem equally applicable to a third-party defendant. The Court accordingly holds that Platt Saco has standing to raise a motion to transfer.

In weighing the convenience of the parties, it is clear that South Carolina is significantly more convenient than Delaware for Platt Saco. All of Platt Saco’s employees and records are in South Carolina and none are in Delaware. Further, many former employees of the various companies involved in the contract live in or very close to South Carolina. Krupp contends that this would be offset by added inconvenience for Krupp. However, a number of Krupp’s employees with knowledge of the relevant facts are based in Charlotte, North . Carolina, the headquarters of Krupp’s Textile Machinery Division, or in South Carolina. Affidavits of James L. Law, Docket Item (“D.I.") 58, attachments 1 and 2. South Carolina would be far more convenient than Delaware for these employees. While Krupp claims that some of its employees in New York, its corporate headquarters and, in West Germany, the headquarters of its parent corporation, will be called to testify, it has not identified who these employees are or why their testimony would be useful. Based on the current record, it appears that there would be little, if any, inconvenience to Krupp in a transfer to South Carolina and, in fact, South Carolina may be more convenient. Thus, the convenience of the parties and witnesses weighs strongly in favor of transfer.

Finally, the Court must consider the interests of justice. In denying Yarn’s motion to transfer, Judge Stapleton noted that Yarn had identified several former employees who would be called as witnesses and who resided in South Carolina. These witnesses would be within the subpoena power of the district court in South Carolina but not of this court. Judge Stapleton acknowledged that this was a factor to be weighed in considering the interests of justice but held that it was outweighed by the choice of forum clause and the weight to be accorded a plaintiff’s choice of forum.

On this motion, Platt Saco has identified additional former employees who would be called to testify and who could be subpoenaed in South Carolina but not in Delaware. Thus, this factor weighs somewhat more heavily in favor of a transfer to South Carolina. Also, Platt Saco never agreed to a choice of forum clause with Krupp. Although a transfer of this action would deprive Krupp of the benefit of its choice of forum agreement with Yarn, this is due to Krupp’s own voluntary action in impleading Platt Saco. The Court accordingly finds that the interests of justice favor transfer to South Carolina.

In summary, Krupp brought this action in a forum which has no connection with this lawsuit and which is not its home turf. It has not demonstrated that there would be any significant inconvenience to it if this action were transferred to South Carolina. Platt Saco has demonstrated that the convenience of the parties and witnesses and the interests of justice strongly favor transfer. Its motion to transfer will accordingly be granted.

Platt Saco has specified that it would prefer that this action be transferred to the Greenville Division of the District of South Carolina. Yam’s lawsuit, which is now on remand from the Fourth Circuit, is currently pending in the Florence Division of the District of South Carolina. The Court believes it would be preferable to transfer this action to the Florence Division where it could more easily be consolidated with Yarn’s action if that court should deem such action appropriate. The Court will accordingly order transfer to the Florence Division. In view of the Court’s disposition of Platt Saco’s motion to transfer, it is unnecessary to rule on its motion to dismiss.

      . In June, 1983, Platt Saco merged with Hergeth, with Platt Saco as the surviving corporation.


text:
    Edward METCALF, Jr., Plaintiff, v. Ernie LONG, Individually and as a member of the Millsboro Police Department, Leon McCabe, Individually and as a member of the Millsboro Police Department, Mike Warrington, Individually and as a member of the Delaware State Police, Defendants.
    Civ. A. No. 80-40 LON.
    United States District Court, D. Delaware.
    Aug. 14, 1985.

      Edward C. Gill, of Wolhar & Associates, Georgetown, Del., for plaintiff.
    H. Murray Sawyer, Jr., and Daniel R. Losco, (argued) of Sawyer & Akin, Wilmington, Del., for defendants.
   OPINION

LONGOBARDI, District Judge.

This is a civil rights action filed under 42 U.S.C. § 1983 by Plaintiff Edward Metcalf, Jr. against Defendants Ernest Long and Leon McCabe, employees of the Millsboro, Delaware, Police Department and Michael Warrington, a member of the Delaware State Police. The Plaintiff alleges that Defendants deprived him of his first, fourth and fourteenth amendment rights by an illegal stop, by the warrantless search of his house and by use of excessive force against him. In addition, Plaintiff alleges a number of pendent state claims against the Defendants, including assault, battery, illegal arrest and false imprisonment. Presently before the Court are cross-motions for summary judgment. The Plaintiff has moved for partial summary judgment on his claim that the initial stop as well as the search of his house violated the fourth and fourteenth amendments. Defendants have filed a cross-motion for summary judgment with respect to all of Plaintiff’s claims.

BACKGROUND

On September 26, 1983, Plaintiff was driving on County Route 411, approximately four miles west of Millsboro, Delaware. As he passed by the residence of an individual named Dennis Ponder, he was stopped by the police and questioned about the whereabouts of Ponder. The officers were at the Ponder residence in the hopes of apprehending or gaining information about the whereabouts of Ponder who had escaped from police custody three days earlier.

The Defendants claim that they stopped Metcalf on September 26 because they had reasonable suspicion to believe that he knew of the whereabouts of Ponder. Such suspicion arose from the fact that on Saturday, September 24, Millsboro police officers who had gone to the Ponder residence to execute a warrant for Ponder’s arrest saw Metcalf drive into the driveway to bring Ponder’s girl friend home. Thus, on September 26, they recognized Metcalf’s car as being the same vehicle they had spotted in Ponder’s driveway on the 24th. They became particularly suspicious of the vehicle because they heard it slow down as if it were going to pull into the driveway, yet when the car reached the residence, it accelerated as if to avoid the police. Metcalf admitted slowing the car in the area of the house.

Suspecting that Ponder could be in Metcalfs car, Corporal Jones and Sergeant Philip McCabe (non-parties) pursued the Metcalf vehicle. The Defendants also proceeded after Metcalf in a different vehicle. Philip McCabe and Jones then stopped Met-calf while the state police car carrying the Defendants arrived shortly thereafter.

After the stop, Metcalf was asked to produce his driver’s license and registration card and the officers ran a registration check on the license plate. Noticing that Ponder was not in the vehicle, Corporal Warrington then asked Metcalf if he knew where Ponder was. There is some dispute as to exactly what Metcalf said in response. Corporal Warrington has stated that Met-calf replied that he did not know where Ponder was but that the police should “take his word for it, this would be taken care of today.” Metcalf denies making such a statement and has testified that all he said was that he knew nothing of Ponder’s whereabouts.

Shortly after the initial stop and while he was still questioning Metcalf, Corporal Warrington learned that Metcalf’s vehicle bore fictitious tags and was improperly registered. Metcalf was then placed under arrest for the traffic violations and ordered to enter a Delaware State Police vehicle. Inside the patrol car, Corporal Warrington continued to question Metcalf about the whereabouts of Dennis Ponder and asked him specifically whether Ponder was hiding at Metcalf's home.

Again, some dispute arises as to what was said by the Plaintiff. Warrington has testified that Metcalf said that Ponder was not at his residence and consented to a search of his residence to substantiate that fact. Metcalf denies ever giving any type of consent to the officers to search his home.

The officers then proceeded in the police patrol car to Plaintiff’s residence. After the police car entered the driveway, Corporal Warrington got out and ordered Met-calf to get out and open the door to his house. Metcalf refused to unlock the door and stated that the only way the officers could get into the house to search would be by kicking the door in. At that point, Defendant McCabe searched Metcalf and a struggle ensued which resulted in Metcalf falling to the ground. During the struggle, Metcalf yelled some words out loudly although the exact content of what he said remains in dispute. The search of Metcalf yielded his house keys which Defendants Warrington and McCabe then used to enter the house. The officers searched all areas in the house that were big enough to conceal a body but did not find Ponder within the house nor on the premises during a subsequent search of the surrounding property.

Plaintiff was then taken to the police station for processing on the traffic violations and on the additional charges of hindering prosecution and possession of drugs. He was not taken for any medical attention on the day of his arrest although he did go to an orthopedic specialist on Friday of that week, four days after the incident, for complaints from injuries which had allegedly resulted from his scuffle with Sergeant McCabe. The doctor diagnosed him as having a neck injury and a pinched nerve in his right wrist. The pinched nerve was thought to be a consequence of the handcuffs. The neck injury was a whiplash type injury involving some torn ligaments and some scar tissue at the base of his neck. Application of hot compresses was recommended as treatment and Plaintiff was given a collar to be used at bed time. No other treatment was administered.

In considering the cross-motions for summary judgment, the Court bears in mind the well established standard for summary judgment set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary judgment may be granted only where the moving party can establish that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. The same is true when cross-motions are before the Court. A court may not grant summary judgment unless one of the moving parties is entitled to judgment as a matter of law upon facts that are not genuinely disputed. Rains v. Casacade Industries, Inc., 402 F.2d 241, 245 (3d Cir. 1968). In considering this motion, the Court will disregard the number of facts which remain in dispute if these facts are not material to the issues on summary judgment.

ELEMENTS OF A SECTION 1983 CLAIM

Before discussing the specific aspects of Metcalfs claims against the police officers, it is important to note the requirements necessary for a claimant to prevail in an action brought under 42 U.S.C. § 1983. Section 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom or usage of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

In any section 1983 action, the initial inquiry must focus on whether two essential elements are present: first, whether the conduct complained of was committed by a person acting under color of state law; and second, whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981).

The parties do not contest the fact that the “under color of state law” requirement is met in this case. Defendants were state employees acting under state authority and with discretion to act thereunder. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Thus, the decision of the Court must focus on what federal right, if any, is at stake in each of the Plaintiffs claims. As the later discussion will indicate, the analysis of what specific right is at issue is not a mere academic exercise and is necessary in determining whether a cause of action may be maintained under section 1983.

In the present case, Metcalf’s claims may be broken into three separate incidents: (1) the initial stop and arrest; (2) the entry into Metcalf’s home and property, and (3) the use of excessive force against Metcalf. The specific rights allegedly violated by each of these occurrences will be examined separately.

THE INITIAL STOP AND ARREST

Plaintiff alleges that the initial stop and arrest by Defendants violated his rights under the fourth and fourteenth amendments “since there was neither probable cause nor reasonable suspicion that Plaintiff had committed a crime to justify such stop and arrest.” Although the complaint is unclear as to whether Plaintiff is alleging that the initial stop violated the fourth amendment by its application to the states through the fourteenth, the Court assumes that is the case. The parties did not suggest in their briefs or oral argument that either the stop and arrest claim or the search of the house claim were grounded in any right other than the fourth amendment protection against unreasonable search and seizure.

The facts surrounding Metcalfs initial stop by the Delaware State Police are not in dispute and both parties have moved for summary judgment on the facts presently in the record. The standard to be used in determining whether the stop violated Metcalfs constitutional rights has evolved in a long line of Supreme Court decisions beginning with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and continuing through the most recent decisions on investigative stops, United States v. Sharpe, — U.S. —, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); United States v. Montoya de Hernandez, — U.S. —, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985). In analyzing the constitutionality of a stop, it is important to bear in mind the oft repeated refrain in these Supreme Court decisions, “The Fourth Amendment is not ... a guarantee against all searches and seizures, but only against unreasonable searches and seizures.” United States v. Sharpe, 105 S.Ct. at 1573.

In Terry v. Ohio, the Court first gave meaning to what type of stop is reasonable under the fourth amendment. A stop of an individual for questioning is “reasonable” where the intrusion entailed by the stop is minimal and the officers have a reasonable suspicion that the detained individual is involved in criminal activity. 392 U.S. at 21-22, 88 S.Ct. at 1879-1880. The stop of an automobile is evaluated in a similar manner and is reasonable where the governmental interest in investigating an officer’s reasonable suspicion outweighs the fourth amendment interest of the driver and passengers in remaining free from the intrusion. Deleware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979).

Although a number of Supreme Court cases have addressed the Terry stop situation, the actual scope of the decisions have been narrow. Initially, the “Terry stop” was limited to situations “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot....” 392 U.S. at 30, 88 S.Ct. at 1884. Recently, the Supreme Court has extended Terry to cover stops of those who may have been involved in a completed crime. United States v. Hensley, — U.S. —, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). The Court based this extension on the rationale that the reasonableness test can be applied as easily where past crimes are suspected as it can be where suspicion of ongoing or contemplated crime exists. The Court noted:

[wjhere police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice. Restraining police action until after probable cause is obtained would not only hinder the investigation but might also enable the suspect to flee and remain at large.

Hensley 105 S.Ct. at 677.

The reasoning of Hensley is applicable to the present case which involves both a past and a possible ongoing violation. Not only could the police have had reason to question Metcalf about the whereabouts of a fleeing felon but they also may have possessed a reasonable suspicion that Metcalf himself was presently breaking the law by harboring a fugitive. 11 Del.C. § 1244.

To determine whether either of these suspicions by the officers were reasonable, the Court must look at the facts specific to this case and weigh the extent of the intrusion against the law enforcement reasons for the stop. In making this balance, the Court must give due weight to the officers’ judgment and “to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883. In the final analysis, it is the totality of circumstances confronting the officers at the time that presents the objective basis for determining whether there was a basis for reasonable suspicion. U.S. v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

In the present case, the initial intrusion was not overly burdensome. Although the stop of Metcalf as he drove by in his automobile is unquestionably a seizure and subject to scrutiny under the fourth amendment, Delaware v. Prouse, 440 U.S. at 653, 99 S.Ct. at 1395, it was not so intrusive as to require probable cause. Two factors led the officers to reasonably suspect that Metcalf could be involved in criminal activity. First, the officers recognized the Metcalf vehicle as the same car that had brought Ponder’s live-in girl friend home two days earlier, at a time shortly after Ponder had escaped. Second, the police officers heard the vehicle round the corner in front of the Ponder residence and testified that it sounded as if it was about to turn into the driveway until the driver saw the police cars and accelerated past the house. A strong reaction to the sight of police officers may be sufficient to stop and question an individual as “deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea ...” Sibron v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968).

A person who manifests concern for the presence of the police, who repeatedly glances at the officer, who changes his direction in an apparent attempt to avoid confronting the officer, or who flees at the sight of an officer will commonly be detained and questioned. It is not to be doubted that such reactions may be taken into account by the police and that together with other suspicious circumstances these reactions may well justify a stopping for investigation.

Lafave, Search & Seizure § 9.3(c) (1978) (citations omitted).

In the present case, there were reasons for the officers to be suspicious of Metcalf as well as a strong law enforcement interest in apprehending a fleeing felon. If the officers had not made the split second decision to stop Metcalf, the possibility of capturing Dennis Ponder or gaining some information as to his whereabouts would have evaporated. As the Supreme Court noted in Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1922-23, 32 L.Ed.2d 612 (1972):

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape____A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

For the foregoing reasons, the Court finds that the initial stop of Metcalf was justified by the officers’ reasonable suspicion that either the driver of the vehicle was Dennis Ponder or that the driver had Ponder in the vehicle or knew of his whereabouts.

The Plaintiff next argues that even if the initial stop of his vehicle was valid, further detention after the officers ascertained that Ponder was not in the car was unreasonable. Under Terry, the Court must inquire into whether the extent of the stop “was reasonably related in scope to the circumstances which justified the interference in the first place.” 392 U.S. at 20, 88 S.Ct. at 1879. The inquiry, however, is not a license for unrealistic second guessing by creative judges engaged in post-hoc evaluations of police conduct who can almost always imagine some alternative means by which the objectives of the police might have been accomplished. United States v. Sharpe, 105 S.Ct. at 1576. The Court finds that the stop in this case did not exceed the permissible scope for several reasons. First, the officers not only had reasonable suspicion that Ponder was in the car but also that Metcalf, whom they had seen driving by Ponder’s house (which was in an isolated area) twice in three days, might know where he was. The officers certainly should have been allowed enough time to confirm or deny that suspicion.

In addition, if a vehicle or its occupant is subject to a stop for reasonable suspicion of a violation of the law, it is permissible to detain the driver in order to check his license and registration. Delaware v. Prouse, 440 U.S. at 663, 99 S.Ct. at 1401. Because the officers in this case had reasonable suspicion to conduct the initial stop, further detention of the Plaintiff for a matter of “minutes” in order to check his license and registration and to question him briefly about Ponder did not violate his rights. Once the officers discovered that Metcalf’s vehicle was improperly registered, further detention was proper since the officers had probable cause to place him under arrest at that time. Thus, the Court finds that Plaintiff’s constitutional rights were not violated by the initial stop and subsequent brief detention of his vehicle.

SEARCH OF THE HOUSE

The other fourth amendment question raised in this case is whether the warrantless search of Metcalf’s house was unreasonable. In Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), the Supreme Court held that an officer without a search warrant may legally search for the subject of an arrest warrant in the home of a third party only where consent has been given or exigent circumstances exist. The Defendants argue that summary judgment should be granted in their favor both because the officers believed they had Metcalf’s consent for the search and because of the existence of exigent circumstances. The Plaintiff argues that he never gave his consent and that exigent circumstances were not present.

The question of whether valid consent to a search has been given is “a question of fact to be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973). Consent must be voluntarily given and not be the result of duress or coercion, either express or implied. Id. In the present case, the Plaintiff denies that he ever gave the officers his consent to search his residence. The Defendants argue that Metcalf not only told them they could search his residence but also cooperated in the investigation of the search by providing them with directions to his house. However, the Court finds that Metcalfs alleged initial consent to search is irrelevant in light of his later undisputed refusal to allow Defendants into his residence. Although the exact words of his statement are uncertain, both parties agree that Met-calf stated that the only way Defendants would be able to enter his house would be if they kicked the door in. The Defendants argue that that statement was not an effective repudiation of Metcalfs earlier consent. .

If consent to a search contains no agreement as to duration, it is implicitly limited by the individual’s right to withdraw the consent. United States v. Ward, 576 F.2d 243 (9th Cir.1978); Mason v. Pulliam, 557 F.2d 426 (5th Cir.1977). Although the statement, “If you want to go in there, kick the door in” is not an explicit withdrawal of consent, its import is apparent. Metcalf, who had possession of the keys to his residence, clearly did not want the officers to enter, otherwise, he would have volunteered the keys. The Court finds that even if Defendants’ version of the facts was correct and Metcalf initially consented to the search, his later non-cooperation with the officers indisputably indicates that the consent was no longer effective.

Because there was no voluntary consent to search, the Court must examine whether exigent circumstances justified the Defendants’ unauthorized entry into Metcalf’s home.

The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home—a zone that finds its roots in clear and specific constitutional terms.... In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639 (1980). As the language of Payton suggests, the exigent circumstances requirement should be construed strictly in order to protect an individual’s justified expectation of privacy in his home.

Although the circumstances may vary from case to case, the Third Circuit has set forth a number of factors to be considered in determining whether “exigent circumstances” exist. The Court should consider whether a “grave offense has been committed”, whether the “suspect sought is reasonably believed armed”, whether “a strong reason exists to believe the suspect is on the premises and a likelihood that the suspect might escape if not caught quickly.” Government of Virgin Islands v. Gereau, 502 F.2d 914, 928 (3d Cir.1974), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975); United States v. Rubin, 474 F.2d 262, 268 (3d Cir), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973). These factors indicate the degree of scrutiny necessary to justify a warrantless search because of exigent circumstances. The most relevant considerations in the present case are: (1) the dangerousness of the suspect, and (2) the possibility that the suspect will escape in the time necessary to get a search warrant.

Weighing these considerations in light of the facts of this case, it is clear that they were not a severe risk when weighed against the intrusion into the Defendant’s home. First, Ponder was not known to be a particularly dangerous individual. The warrants for his arrest had been issued on charges of escape, felony theft, driving under the influence and several traffic charges. Although these charges are serious, it is unlikely that they meet the Gereau requirement that a “grave offense has been committed.” In addition, the second Gereau consideration, the likelihood that the suspect is presently armed, is also not met here. Ponder was not wanted for the commission of any violent crimes. Indeed, nothing in the record indicates that any of the officers had reason to believe Ponder was armed or violent.

However, the possibility of violence is not the only consideration in making a finding of exigent circumstances. The Court must also consider the probability that the suspect is on the premises and likely to escape if not caught quickly. Assuming for the sake of argument that the police officers had probable cause to believe that Ponder was on the premises, the chance that Ponder could escape before the officers had time to obtain a warrant was very unlikely. Thus, the Court finds that exigent circumstances did not justify the Defendants’ warrantless entry into Plaintiff’s house and summary judgment is granted in favor of the Plaintiff.

EXCESSIVE FORCE

Metcalf’s final claim under section 1983 alleges that the Defendants used excessive force against him while he was in custody thereby violating his rights under the Fourth, Eighth and Fourteenth Amendments to the United States Constitution. Defendants have moved for summary judgment on the grounds that the officers’ use of force was reasonable and did not amount to a violation of any federally protected rights.

Excessive force used by police officers can form the basis of a constitutional violation which may be redressed through section 1983. However, a question arises as to exactly which constitutional right is infringed when excessive force is used.

Although some decisions have not specified what constitutional right is implicated, see, e.g., Landrigan v. City of Warwick, 628 F.2d 736 (1st Cir.1980), such specificity is necessary in order to determine whether a constitutional violation has occurred. Soto v. City of Sacramento, 567 F.Supp. 662, 670 (E.D.Ca.1983). The applicable standard varies depending on which right is allegedly infringed. For example, if the use of excessive force is alleged to violate the fourth amendment, the fourth amendment reasonableness standard is applied; i.e., balancing the extent of the intrusion against the need for it. Tennessee v. Garner, — U.S. —, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). On the other hand, if the police officers’ actions allegedly violate the substantive due process aspect of the fourteenth amendment, independent of the fourth amendment, the Court must examine whether the actions were so unreasonable as to “shock the conscience” of the Court. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Finally, where the eighth amendment is allegedly infringed, the Court must ask whether the punishment is unnecessarily cruel in view of the purpose for which it is used. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910).

Although some decisions have not specified what right is infringed when a police officer utilizes excessive force against an individual and while other cases have routinely applied substantive due process, upon close analysis, a pattern begins to emerge. Cases discussing the use of excessive force by state officials may be broken into three categories: first, those cases involving the use of excessive force to effectuate an arrest; second, those cases involving the use of force against an individual in police custody and/or a pretrial detainee; and finally, those cases involving the use of force against a convicted individual. In each of these situations, different constitutional rights may be implicated.

Supreme Court precedent lays the groundwork for such distinctions. For example, in evaluating the constitutionality of a Tennessee statute which allowed a police officer to “use all the necessary means to effect the arrest” of a fleeing felon, the court subjected the statute to scrutiny under the fourth amendment.

... [t]here can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.
A police officer may arrest a person if he has probable cause to believe that person committed a crime. Petitioners and appellant argue that if this requirement is satisfied the Fourth Amendment has nothing to say about how that seizure is made. This submission ignores the many cases in which this Court, by balancing the extent of the intrusion against the need for it, has examined the reasonableness of the manner in which a search or seizure is conducted.

105 S.Ct. at 1699 (citations omitted). The Court goes on to evaluate the seizure solely in light of the fourth amendment without going into any fourteenth amendment substantive due process analysis.

On the other hand, in City of Revere v. Massachusetts General Hosp., 463 U.S. 239, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983), the Court applied the due process clause when discussing the rights of an individual who had been apprehended but not yet convicted.

The Due Process Clause, however, does require the responsible government or governmental agency to provide medical care to persons ... who have been injured while being apprehended by the police. In fact, the due process rights of a person in Kivlin’s situation are at least as great as the Eighth Amendment protections available to a convicted prisoner.

Id. 103 S.Ct. at 2983. Of course, the City of Revere case was not the first case to apply substantive fourteenth amendment protections to individuals in custody. In Rochin v. California, the Court first articulated the constitutional protection due an individual in custody. In Rochin, the court held that subjecting a suspect against his will to a stomach pump to obtain evidence violated the due process clause of the fourteenth amendment. The court found that action violates the due process clause when it “so shocks the conscience” that it “is bound to offend even hardened sensibilities.” 342 U.S. at 172, 72 S.Ct. at 209. Since the Rochin decision, numerous courts have applied the “shocks the conscience standard” to determine when the due process rights of individuals in custody have been violated. Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973); Duran v. Elrod, 542 F.2d 998 (7th Cir.1976); Soto v. City of Sacramento, 567 F.Supp. 662 (E.D.Ca.1983); .Classon v. Krautkramer, 451 F.Supp. 12 (E.D.Wis.1977).

Once an individual is actually convicted of a crime, additional constitutional protection under the eighth amendment is applicable. However, eighth amendment protections only apply to convicted individuals and cannot be applied to pretrial detainees.

The Court of Appeals properly relied on the Due Process Clause rather than the Eighth Amendment in considering the claims of pretrial detainees. Due Process requires that a pretrial detainee not be punished. A sentenced inmate, on the other hand, may be punished, although that punishment may not be “cruel and unusual” under the Eighth Amendment.

Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1872 n. 16, 60 L.Ed.2d 447 (1978).

In this case, Metcalf has claimed violations of his rights under the fourth, eighth and fourteenth amendments. As the foregoing discussion indicates, all of these rights are not applicable in this fact situation. Since Metcalf was not a convicted prisoner at the time of the alleged violation, the eighth amendment claim may be readily dismissed. “The state does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.” Ingraham v. Wright, 430 U.S. 651, 671 n. 40, 97 S.Ct. 1401, 1412 n. 40, 51 L.Ed.2d 71Í (1977).

The fourth amendment claim is also inapplicable to Metcalfs claim of excessive force. Analysis under the fourth amendment is most appropriate when the complaint is specifically directed to the method of arrest and seizure of the person. Bell v. City of Milwaukee, 746 F.2d 1205, 1278 n. 87 (7th Cir.1984). In the present ease, Metcalf had been placed under arrest for some time before the violence occurred. Thus, the fourth amendment reasonableness analysis is inapplicable to events occurring later than that initial seizure.

Metcalf’s claim under the substantive due process aspect of the fourteenth amendment remains. Substantive due process is a nebulous term, the meaning of which readily changes depending on the context of the particular situation. Substantive due process derives from the idea that the framers of the Constitution intended to protect rights other than those specified. In deciding that certain rights not specified in the constitution are protected by the due process clause, the Court has looked to those rights which are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934). One right which has been deemed “fundamental” is the right of individuals to be free from treatment by law enforcement officers that “shocks the conscience.” Rochin 342 U.S. at 172, 72 S.Ct. at 209. Thus, in evaluating a claim of excessive force under the fourteenth amendment, the Court must determine whether the conduct by the police officers is such that it “shocks the conscience.”

Such a “vague and discretionary” standard is not easily utilized. However, the ambiguous standard set forth in Rochin is still the law of this nation and must be applied. See, Baker v. McCollan, 443 U.S. 137, 147-49, 99 S.Ct. 2689, 2696-97, 61 L.Ed.2d 433 (Blackmun, J. concurring); Luce v. Hayden, 598 F.Supp. 1101, 1104 (D.Maine 1984). Appropriate application requires reference to the language of Rochin itself.

The vague contours of the Due Process Clause do not leave judges at large. We may not draw on our merely personal and private notions and disregard the limits that bind judges in their judicial function. Even though the concept of due process of law is not final and fixed, these limits are derived from considerations that are fused in the whole nature of our judicial process.

342 U.S. at 170, 72 S.Ct. at 208.

One such limit is the protection against undue physical abuse by law enforcement officers. However, the constitutional protection under substantive due process is not coextensive with the common law action for assault and battery. “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates ... constitutional rights.” Johnson v. Glick, 481 F.2d at 1033. Thus, in determining whether the constitutional line has been crossed, the Court must look to the totality of circumstances surrounding the action. Factors such as the need for application of force; the relationship between the need for force and the amount of force used; the extent of the injury; and the purpose of the force must be considered. Davidson v. Dixon, 386 F.Supp. 482, 488 (D.Del.1974), aff’d mem., 529 F.2d 511 (3d Cir.1975).

Application of such factors to the present case leads the Court to find that even when the facts are considered in the light most favorable to the Plaintiff, the Defendants’ actions did not amount to a substantive violation of the fourteenth amendment. The Plaintiff alleges that when Defendants searched him in front of his home, he was “smashed to the ground, neck and head first.” At this point, Defendant put full body weight on Plaintiff, causing pressure on Plaintiff’s neck and head. Even assuming that there was no cause for this attack on Plaintiff by Defendant McCabe, the action by the officers does not rise to the level of conduct that “shocks the conscience.” Even Metcalf’s version of the incident indicates that it was a brief skirmish giving rise to only minor injuries. Metcalf did not go for medical treatment until four days after the incident and, at that time, was diagnosed as having a whiplash type neck injury and a pinched nerve in his right wrist. He saw the doctor approximately three times after that and the only treatment prescribed was the application of heat to the neck injury and a collar to sleep in. No medication was prescribed.

Where the injury is this minor, it is impossible to label Defendants’ actions as conduct that “shocks the conscience.” As this district has found repeatedly in cases involving allegations of excessive force by police officers, a mere assault and battery does not rise to the level of a constitutional violation. Shaw v. State, C.A. No. 83-88, slip op. (D.Del. Aug. 10, 1983) (injuries to right leg and buttock by police dog and kick in ribs by police officer is not a constitutional violation); Allen v. Short, C.A. No. 83-614, slip op. (D.Del. Apr. 5, 1984) (kick by police officer not a constitutional violation). “[P]laintiff must show more than that he suffered an intentional tort at the hands of a defendant who was acting under color of state law; he must prove acts which amount to shocking or brutal conduct.” Davidson, 386 F.Supp. at 488. Thus, the Court finds that Defendants’ actions in this case did not violate the Plaintiff’s substantive due process rights under the fourteenth amendment.

IMMUNITY

Defendants have moved that the complaint against them be dismissed because, even if their actions violated Metcalf’s rights, they were protected by the doctrine of immunity prescribed in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see, also, Mitchell v. Forsyth, — U.S. —, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Because the Court has found for the Defendants on all but one of their summary judgment motions, it is necessary to discuss immunity only as it applies to Defendants’ actions in the warrant-less search of Metcalf’s house.

In Harlow, the Supreme Court stated that immunity is available only to officials whose conduct conforms to a standard of “objective legal reasonableness.” 457 U.S. at 819. An official is protected by qualified immunity except where his conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818.

As the discussion of the law concerning warrantless searches suggests, the law in this area is clearly established. The two Third Circuit cases discussing what may constitute “exigent circumstances” when a search for a suspect is being conducted were both decided in the 1970’s. Government of Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir.1974); United States v. Williams, 612 F.2d 735 (3d Cir.1979), cert. denied, 445 U.S. 934, 100 S.Ct. 1328, 63 L.Ed.2d 770 (1980). A ruling of the Third Circuit may be sufficient for law to be considered “clearly established.” Gann v. Schramm, 606 F.Supp. 1442 (D.Del. 1985); Dehorty v. New Castle County Council, 560 F.Supp. 889 (D.Del.1983). The Court finds that Defendants’ actions in searching Plaintiff’s house violated clearly established law of the Third Circuit and they are not immune from liability on that count of Plaintiff’s complaint.

STATE CLAIMS

Because all the federal claims have been decided on summary judgment, the Court chooses not to decide the state immunity issue and dismisses the state claims without prejudice. The only remaining issue before this Court is the assessment of damages and a damages determination in this Court is not sufficiently related to the numerous state claims for this Court to exercise its pendent jurisdiction. If “federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Broderick v. Associated Hosp. Serv. of Philadelphia, 536 F.2d 1, 4 n. 15 (3d Cir.1976).

      . Leon McCabe, not Philip McCabe, is a Defendant in this case.

      . Defendant Long has testified that he thought Metcalf yelled out, “Trooper, Trooper” as a clue for somebody in the house to take off. Metcalf has testified that he yelled out, “Officer, what are you doing?" loudly several times.

      . The drug charges stemmed from the search of Metcalf's person which revealed what appeared to be a marijuana cigarette in his jacket pocket.

      . The guarantee against unreasonable searches and seizures contained in the fourth amendment has been made applicable to the states by reason of the due process clause of the fourteenth amendment. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949); Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960).

      . Little authority exists on the issue of what level of suspicion is necessary to stop and question potential witnesses about a crime. The authority that does exist suggests that the fourth amendment does not permit the stopping of potential witnesses to the same extent as those suspected of crime. See, e.g., Lafave, Searches & Seizure § 9.2 (1978); United States v. Ward, 488 F.2d 162 (9th Cir.1973). However, this Court need not decide what meets that standard at this time because the Plaintiff in this case could have been suspected of violating 11 Del.C. § 1244.

      . The Defendants argue that Metcalfs statement that he did not know the whereabouts of Ponder but that it would “all be taken care of today” provided adequate grounds for further detention of Metcalf. However, the Court cannot rely on this fact in deciding this motion for summary judgment as the statement has been denied by Metcalf, leaving it clearly in dispute.

      . In Delaware v. Prouse, the Supreme Court found that spot checks of licenses and registrations are unconstitutional if conducted on a purely discretionary basis. However, such checks are permissible if there is reasonable suspicion for the initial stop because that initial requirement protects against the exercise of unfettered discretion by police officers. 440 U.S. at 663, 99 S.Ct. at 1401.

      . The complaint alleges that the search also violated Plaintiff's first amendment rights. Since that issue was not raised in the briefs or oral argument (and the Court cannot imagine the applicability of the first amendment to this situation), the first amendment allegation is considered abandoned and will be dismissed in the absence of an application from the Plaintiff.

      . Defendant Long did not participate in the warrantless search of Metcalf’s home nor did he even see Defendants Warrington and McCabe enter the house. Some affirmative link between the Plaintiff's injury and the Defendants' conduct is essential to maintain an action under section 1983. Rizzo v. Goode, 423 U.S. 362, 372-73, 96 S.Ct. 598, 604-05, 46 L.Ed.2d 561 (1976). Because no such affirmative link exists in this case, Count II of the complaint is dismissed as to Long.

      . Whether the constitutionality of consent searches depends on whether the consenting party in fact made a free and competent choice and consented or requires only that the police had a reasonable belief that a voluntary consent was given is unsettled in this Circuit and is unclear in much of the case law. The Fifth Circuit has taken a definitive position on the issue stating that: "No matter how genuine the belief of the officers is that the consenter is apparently of sound mind and deliberately acting, the search depending on his consent fails if it is judicially determined that he lacked mental capacity.” United States v. Elrod, 441 F.2d 353, 356 (5th Cir.1971). In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the Supreme Court impliedly indicated agreement with the Elrod approach by condemning consents given under coercion and requiring a focus on the actual voluntariness of the consent. However, this Court makes no finding on this issue at this time as it finds that consent was inadequate under either approach because of the subsequent withdrawal of consent.

      . Not all torts of state officials violate the Constitution or laws of the United States and thus are not always actionable under section 1983. "Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law. Remedy for the latter type of injury must be sought in state court under traditional tort law principles." Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979).

      . It is necessary to comment on the important distinction between the procedural and substantive aspects of the due process clause of the fourteenth amendment. A procedural due process claim is based on an allegation that the procedures used by the state in effecting the deprivation of a life, liberty or property interest were inadequate. Substantive due process is not a claim of procedural deficiency but rather a claim that the state's conduct is inherently impermissible. See, Schiller v. Strangis, 540 F.Supp. 605, 613-14 (D.Mass.1982). Procedural due process claims focus on the procedures available to the Plaintiff either before or after the deprivation while substantive due process focuses on the deprivation itself. Substantive due process is based on "the right to be free of state intrusions into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court.” Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980).
      In this case, it is unclear whether Metcalf is claiming a violation of procedural or substantive due process or both. However, in neither the briefs nor the oral argument was a procedural due process argument raised. Thus, the Court assumes that the Plaintiff has based his claim on substantive due process.

      . The eighth amendment is applicable to situations where punishment “has been deliberately administered for a penal or disciplinary purpose, with the apparent authorization of high prison officials charged by the state with responsibility for care, control, and discipline of prisoners." Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir. 1973). On the other hand, spontaneous attacks by guards or other inmates are protected by the fourteenth amendment. Id.

      . In Mitchell v. Forsyth, — U.S. —, —, 105 S.Ct. 2806, 2820, 86 L.Ed.2d 411 (1985), the Supreme Court found that two Federal District Court decisions are not sufficient for law to be "clearly established." However, two decisions of the Third Circuit are of greater weight in this district than the two district court opinions in Mitchell which were from different districts.