author: CONNER, District Judge:

text:
    TRI-EX ENTERPRISES, INC., Plaintiff, v. MORGAN GUARANTY TRUST COMPANY OF NEW YORK, Federal Republic of Nigeria, Central Bank of Nigeria, and Alan London, Defendants. MORGAN GUARANTY TRUST COMPANY OF NEW YORK, Federal Republic of Nigeria and Central Bank of Nigeria, Defendants, v. Alan LONDON and Lime International Corporation, Third-Party Defendants.
    80 Civ. 3856 (WCC).
    United States District Court, S.D. New York.
    Sept. 22, 1982.
    On Motion for Partial Summary Judgments Oct. 6, 1983.
    See also, D.C., 583 F.Supp. 1116, D.C., 586 F.Supp. 930.

      Breed, Stairs & Berger, New York City, for plaintiff; Andrew Berger, Christopher F. Meatto, Arie Bucheister, New York City, of counsel.
    Lowe & Knapp, New York City, for defendant Alan London; Robert P. Knapp, Jr., Raymond L. Herbert, Stephen D. Ryan, III, Jean-Pierre VanLent, New York City, of counsel.
    Halley & Chalos, New York City, for defendants Federal Republic of Nigeria and Central Bank of Nigeria; Michael G. Chalos, Robert J. Brown, New York City, of counsel.
   OPINION AND ORDER

CONNER, District Judge:

Before this Court is a motion by defendant Alan London (“London”) for an order pursuant to Rules 12(c) and 12(h)(3), F.R. Civ.P., dismissing the complaint against him on the ground of lack of subject matter jurisdiction. In its complaint, plaintiff invokes this Court’s jurisdiction over its claims against the Federal Republic of Nigeria (“Nigeria”) and the Central Bank of Nigeria (“CBN”) under the Foreign Sovereign Immunities Act (“FSIA”), while it contends that jurisdiction over defendant London is properly exercised under principles of pendent jurisdiction. It is undisputed that there exists no independent basis for the exercise of federal jurisdiction over plaintiff’s claim against London.

In support of his motion, London presents two alternative arguments. First, he argues that 28 U.S.C. § 1330 does not provide a basis for federal jr isdiction in this action, and that there is accordingly no possible federal claim to which plaintiff’s claim against London can be pendent. Alternatively, London asserts that even if, plaintiff has a federal cause of action against Nigeria and CBN, plaintiff’s claim against London is not pendent to those claims. This Court has concluded that while federal jurisdiction in this action properly exists under 28 U.S.C. § 1330, pendent party jurisdiction is inapplicable to plaintiff’s claim against defendant London. Accordingly, the claim against defendant London will be dismissed.

I.

The facts alleged in plaintiffs complaint that are necessary to resolve this motion can be quickly summarized. Plaintiff TriEx Enterprises, Inc. is a New York corporation. In April 1974, plaintiff entered into contracts with Nigeria to supply 500,000 metric tons of cement at a price of $49.50 per metric ton. In August 1974, Nigeria agreed to increase the price it would pay plaintiff to $53 per metric ton. Payment to plaintiff for the cement was to have been made by a letter of credit issued by CBN and confirmed by Morgan Guaranty Trust Company of New York (“Morgan”). Nigeria’s contracts with plaintiff were part of a huge program of cement purchases during 1974 and 1975. It soon became apparent that Nigeria had contracted for the delivery of much more cement than could feasibly be discharged in Lagos, Nigeria, and sometime during the middle of 1975 there developed a massive backlog of ships waiting to discharge their cement. In response to this congestion, CBN in September 1975 issued directives restricting the ability of suppliers, such as plaintiff, to deliver the cement they had contracted to supply. As a result of these restrictions, plaintiff found itself unable to find any shippers willing to deliver cement to Nigeria. At Nigeria’s request, plaintiff then traveled to Lagos in an attempt to settle compensation for breach of the contracts, but no compensation was ever paid.

In November 1975, London was introduced to plaintiff by Lime International Corp. (“Lime”), a third party, and was informed of plaintiff’s inability to find a shipper. Upon London’s assertion that he could find shippers willing to deliver cement to Nigeria, plaintiff agreed that if London was able to present documents establishing the shipment of cement, plaintiff would direct Morgan to pay London a substantial portion of the funds Morgan would otherwise pay plaintiff. In a fraudulent effort to obtain these funds, London presented to plaintiff four falsified bills of lading. Plaintiff, believing this documentation to be genuine, presented them to Morgan along with drafts aggregating $2,286,-473. Plaintiff directed Morgan to pay it $129,423, and to pay the balance to Lime and to London’s Liechtenstein corporation, Temo Anstalt. Morgan, however, refused to pay these drafts, apparently having discovered that the bills were not genuine. Plaintiff ultimately went out of business in March 1976.

On July 8, 1980, plaintiff filed this action against Nigeria, CBN, Morgan, and London. Plaintiff alleges breach of contract claims against defendants Nigeria and CBN, as well as a claim against Nigeria asserting that plaintiff was induced to travel to Nigeria and to suspend its efforts to supply cement upon Nigeria’s fraudulent representation that plaintiff would be compensated. Federal jurisdiction over these two defendants is asserted on the basis of the jurisdictional section of the FSIA, 28 U.S.C. § 1330. Plaintiff also claims that Morgan breached its duty toward plaintiff under Morgan’s letter of credit by refusing to state the reasons for rejecting payment of the drafts. Plaintiff asserts pendent jurisdiction over this claim against-Morgan. Plaintiff’s claim against London arises from the false bills of lading. Plaintiff alleges that it was prevented from fulfilling its contracts as a result of London’s deceitful conduct.

II.

Because pendent jurisdiction is based upon the existence of federal jurisdiction over a related claim, United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966), this Court must first determine whether 28 U.S.C. § 1330 properly supports federal jurisdiction over plaintiff’s action against Nigeria and CBN. Defendant London asserts that the Second Circuit’s recent decision in Verlinden B.V. v. Central Bank of Nigeria, 647 F.2d 320 (2d Cir.1981), cert. granted 454 U.S. 1140, 102 S.Ct. 997, 71 L.Ed.2d 291 (1982), is dispositive of his contention that plaintiff cannot establish federal jurisdiction simply by suing a foreign sovereign under 28 U.S.C. § 1330. London’s argument, however, is based upon a misreading of Verlinden. Verlinden, which arose out of the same program of cement purchases by Nigeria which resulted in the instant controversy, involved a suit by an alien plaintiff against a foreign sovereign under 28 U.S.C. § 1330. The Second Circuit held that although 28 U.S.C. § 1330 purported to give the district courts original jurisdiction over suits against foreign sovereigns, there is no constitutional basis for that grant when the plaintiff is an alien alleging nonfederal causes of action. Verlinden, 647 F.2d at 330.

Any exercise of federal jurisdiction must, of course, have both a constitutional and a statutory basis. Kline v. Burke Construction Co., 260 U.S. 226, 234, 43 S.Ct. 79, 82, 67 L.Ed.2d 226 (1922); Sheldon v. Sill, 8 How. 441, 448, 12 L.Ed. 1147 (1850). In Verlinden, the Court ruled that although 28 U.S.C. § 1330 provided the necessary statutory foundation, 647 F.2d at 324, there was no constitutional grant of power to the federal courts under Article III § 2, cl. 1 of the Constitution. The court held that a claim grounded on § 1330, but asserting only nonfederal rights to relief, was not a claim “arising under” the laws of the United States, as that term is used in Article III. 647 F.2d at 327-30. In addition, because Verlinden was a suit between two aliens, it could not fit under the diversity grant of Article III, § 2, cl. 1 which provides, inter alia, that “the judicial power shall extend to ... Controversies ... between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” See 647 F.2d at 325.

Unlike the situation in Verlinden, it is precisely this clause that provides the constitutional basis for the exercise of federal jurisdiction in the instant case. Plaintiff is a citizen of New York. Defendants Nigeria and CBN are foreign states. Thus there exists controversy between a United States citizen and a foreign state, squarely within the Article III grant of jurisdiction. The fact that defendants Morgan and London are also New York citizens does not affect this grant because Article III, unlike the statutory grant of diversity jurisdiction, 28 U.S.C. § 1332, requires only partial, as opposed to complete, diversity. State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523, 531, 87 S.Ct. 1199, 1203, 18 L.Ed.2d 270 (1967). Plaintiff, therefore, has properly invoked this Court’s jurisdiction under 28 U.S.C. § 1330 and Article III, § 2, cl. 1 of the Constitution.

III.

Having determined that there is federal jurisdiction over the claims against the Nigerian defendants, we must now decide whether there is pendent party jurisdiction over the claim against London. In In re Investors Funding Corporation of New York Securities Litigation, 523 F.Supp. 550 (S.D.N.Y.1980) (Conner, J.), this Court set forth the principles that guide its exercise of pendent party jurisdiction. See 523 F.Supp. at 560-62. Although it is unnecessary to restate those principles fully here, a brief summary of the basic criteria is appropriate.

Pendent party jurisdiction is typically sought by one who has no claim against the pendent party for which there is federal jurisdiction, but only a related claim against another party over which there is federal jurisdiction. It is to be distinguished from pendent claim jurisdiction, which preserves the existence of a claim over which the court has federal jurisdiction, and another claim involving the same parties lacking an independent ground of federal jurisdiction. Plaintiff’s theory in this case is that its claim against London is pendent to its claims against Nigeria and CBN over which this Court has federal jurisdiction.

The exercise of pendent jurisdiction over a nonfederal claim is appropriate where (1) the court has power under Article III of the Constitution, measured by whether the pendent claim and the federal jurisdiction-conferring claim “derive from a common nucleus of operative fact,” and (2) the court in its discretion determines to exercise that jurisdiction, based upon “considerations of judicial economy, convenience, and fairness to litigants.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 725-26, 86 S.Ct. 1130, 1138-39, 16 L.Ed.2d 218 (1966). Any exercise of pendent party jurisdiction is subject not only to these two requirements of Gibbs, but also to the additional condition that Congress, in the statute conferring federal jurisdiction over the main claim, has not expressly or by implication negated the existence of pendent party jurisdiction. Aldinger v. Howard, 427 U.S. 1, 18, 96 S.Ct. 2413, 2422, 49 L.Ed.2d 276 (1976). This result reflects the fundamental precept that federal jurisdiction may not surpass the limitations imposed by either the Constitution or Congress. See id. at 15, 96 S.Ct. at 2420. The Aldinger requirement quickly manifested itself in Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978), where the Court ruled that no pendent party jurisdiction could be exerted over a nondiverse defendant when federal jurisdiction is based solely on diversity grounds. See 437 U.S. at 377, 98 S.Ct. at 2404. The Court reasoned that the Congressional mandate of complete diversity set out in 28 U.S.C. § 1332(a)(1) implicitly negated the exercise of such jurisdiction by the federal courts. Id. at 374, 98 S.Ct. at 2403.

London contends that the Kroger result controls the disposition of his motion. Defendant’s argument, however, overstates the breadth of the Kroger ruling. Kroger holds only that the Congressional requirement of complete diversity in 28 U.S.C. § 1332 negates the existence of pendent jurisdiction over a nondiverse party. Id. at 377, 98 S.Ct. at 2404. In the instant case, however, 28 U.S.C. § 1332 is not the operative Congressional grant of federal jurisdiction: instead, plaintiff invokes federal jurisdiction under 28 U.S.C. § 1330. Unlike the statutory grant under § 1332, § 1330 does not preclude the existence of pendent party jurisdiction over a nondiverse defendant. To the contrary, this section of the FSIA evinces a Congressional intent to broaden federal jurisdiction by allowing all suits growing out of transactions involving foreign sovereigns to be heard in a federal forum. Any exercise of pendent party jurisdiction over London would, therefore, be entirely consistent with the statutory grant of federal jurisdiction in this case.

This conclusion does not necessitate the denial of London’s motion, however, for any exercise of pendent party jurisdiction must also satisfy the two Gibbs criteria. Although plaintiff’s claims against London and against Nigeria and CBN appear superficially to derive from a “common nucleus of operative fact,” a closer examination leads this Court to conclude that they do not. Plaintiff’s right to relief against London depends upon the fraudulent nature of the representations made and documents given to it by London. On the other hand, plaintiff’s actions against Nigeria and CBN concern the existence of contracts and other activities that did not involve London.

Plaintiff’s success against London does not depend upon the facts underlying its claims against Nigeria and CBN, except insofar as background proof of an existing contract to deliver cement would be necessary to prove damages. The existence of the underlying contract with Nigeria is not likely to be denied; thus, the trial of the claim against London will probably involve little or no issues or testimony common to the trial of the claim against the Nigerian defendants. Because there is no “common nucleus of operative fact,” the claim against London is not within the pendent jurisdiction of this Court and must be dismissed. See Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138.

SO ORDERED.

ON MOTION FOR PARTIAL SUMMARY JUDGMENTS

The instant action involves but one of many disputes that have followed in the wake of the huge and ill-conceived program of cement purchases by the Federal Republic of Nigeria (“Nigeria”) during 1974 and 1975. In the specific transaction at issue in this case, plaintiff Tri-Ex Enterprises, Inc. (“Tri-Ex”) agreed in April 1974 to supply to Nigeria 500,000 metric tons of cement at a price of $49.50 per metric ton. To facilitate payment for the cement, the Central Bank of Nigeria (“CBN”) issued through Morgan Guaranty Trust Company (“Morgan”) an irrevocable letter of credit in favor of TriEx.

During the middle of 1975, a massive backlog of ships waiting to discharge their cargos developed in the Port of Lagos, Nigeria. In response to this congestion, Nigeria and CBN took certain actions during the late summer and fall of 1975 to regulate the arrival of cement-carrying ships at the Port. First, on August 9, 1975, Nigeria issued Government Directive No. 1434 which required, inter alia, that all shippers give the Nigerian Port Authority two months’ advance notice of a ship’s scheduled arrival and of the contents of the ship’s cargo, and obtain prior approval from the Port Authority for the sailing. See Ex. A. to Berger Aff. Second, in September 1975, Nigeria sent Tri-Ex a Telex directing Tri-Ex to suspend further delivery of cement to Nigeria. See Ex. B to Berger Aff. Then, on September 30, CBN Telexed Morgan and directed Morgan not to pay under any letter of credit without first obtaining confirmation from CBN that the shipment for which payment was being requested had been cleared by the Nigerian Port Authority. See Ex. C to Berger Aff. Finally, on December 19, 1975, Nigeria promulgated Decree No. 40, which imposed criminal penalties for unauthorized entry into a Nigerian port. See Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300, 305 (2d Cir.), cert. denied, 454 U.S. 1148, 102 S.Ct. 1012, 71 L.Ed.2d 301 (1982).

In Decor by Nikkei International, Inc. v. Federal Republic of Nigeria, 497 F.Supp. 893 (S.D.N.Y.1980), affd, 647 F.2d 300 (2d Cir.1981), cert. denied, sub nom. Federal Republic of Nigeria v. Texas Trading & Milling Corp., 454 U.S. 1148, 102 S.Ct. 1012, 71 L.Ed.2d 301 (1982), Judge Pierce of this Court ruled that these same acts by Nigeria and CBN constituted the anticipatory breach of other contracts materially identical to those at issue in the instant case. Nikkei was a consolidated action involving three separate suits by individual suppliers of cement under contracts entered into, as in the instant case, during Nigeria’s prolific period of cement procurement. With respect to the defendants’ breach of their obligations under the letters of credit, Judge Pierce found:

The evidence submitted at trial indicates that Nigeria did not intend to provide Nikkei or any of the other plaintiffs herein with the certificates they would need to obtain payment due from Morgan under the letters of credit as amended unless they agreed to cancel their cement contracts.

497 F.Supp. at 900.

Moreover, Judge Pierce ruled that Nigeria’s and CBN’s conduct in August through December 1975 “clearly demonstrate[s] Nigeria’s intent to terminate its performance under these [cement] contracts.” Id. at 908.

On the basis of these findings, Tri-Ex contends that Nigeria and CBN should be collaterally estopped in the instant proceeding from arguing that they did not anticipatorily breach their contracts with Tri-Ex. Consequently, plaintiff seeks summary judgment pursuant to Rule 56, F.R.Civ.P., on the issue of Nigeria’s and CBN’s liability for anticipatory repudiation of their contracts with Tri-Ex. For the reasons stated below, that motion is denied.

Discussion

Under the doctrine of collateral estoppel, often referred to as issue preclusion, once a court has actually, and necessarily decided an issue of law or fact, that determination will bar relitigation of the issue in a subsequent suit on a different cause of action involving a party to the prior lawsuit. Montana v. United States, 440 U.S. 147, 152, 99 S.Ct. 970, 972, 59 L.Ed.2d 210 (1979). It is undisputed that a litigant who was not a party to the first action may assert collateral estoppel offensively in a subsequent proceeding against the party who lost the decided issue in the prior case. See Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). But although this offensive use is permitted, the trial court has broad discretion to determine when it should be applied. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 331, 99 S.Ct. 645, 651, 58 L.Ed.2d 552 (1979). If for any reason it would be unfair to a defendant to bind him by a prior finding, the court should not allow the use of offensive collateral estoppel. See id.

(1) the same issue is involved in both the prior and current actions;
(2) the issue was actually litigated in the first action after a full and fair opportunity for litigation;
(3) the issue was actually decided in the first action and the decision is final; and
(4) the decision on that issue was necessary to a resolution of the first action. See 18 C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure § 4416 at 137— 38.

It is simply unwarranted, at this stage of the instant litigation, to determine conclusively that Nigeria and CBN anticipatorily repudiated their contracts with TriEx based solely upon the findings in Nikkei. A contract by its very nature embodies rights and duties on both sides. Although the same actions that constituted the anticipatory breach in Nikkei are present here, this Court is not prepared to rule on the basis of Nikkei that a breach of the Tri-Ex contracts occurred until it is satisfied that Tri-Ex was situated similarly to the plaintiffs in that case.

The fact that the same material terms exist in the Tri-Ex contracts as existed in the Nikkei contracts does not by itself place the plaintiffs in analogous positions. Nigeria and CBN have alleged several defenses to Tri-Ex’s claim. Among those defenses are allegations that the contracts are unenforceable because Tri-Ex procured them illegally and performed under them fraudulently, and that, even if they are enforceable, Tri-Ex’s own actions after the fall of 1975 demonstrate that no anticipatory breach occurred. Clearly these defenses present material issues of fact which preclude the application of collateral estoppel and the granting of summary judgment at this point. The Court obviously cannot rule that defendants have anticipatorily breached their contracts unless it finds, as a matter of law, that enforceable contracts exist. The issues of fact preclude such a ruling.

This is not to say, as Nigeria and CBN contend, that simply because the Tri-Ex agreement is a separate physical contract from the contracts in Nikkei it is necessarily not susceptible to the application of collateral estoppel. Although contracts may involve different parties, they are not necessarily unique in the same way that parcels of land are considered by the law to be unique. Thus, unlike cases involving land, ordinary contract actions are not automatically immune from the application of collateral estoppel. Cf. Milens of California v. Richmond Redevelopment Agency, 665 F.2d 906, 908 (9th Cir.1982) (since each parcel of real estate is unique, prior adjudication that city agency liable for inverse condemnation on one property not binding on question whether same agency liable for identical action on adjoining property).

The Court does not intend, in the instant case, to retry the question whether defendants’ actions constitute an anticipatory breach of their contracts. If defendants fail to establish their affirmative defenses at trial, the Court will at that time apply collateral estoppel and rule that defendants have anticipatorily breached their obligations to Tri-Ex. At this stage of the proceeding, however, preliminary issues of fact concerning the existence of an enforceable contract preclude the Court from granting Tri-Ex’s motion.

Accordingly, plaintiff’s motion for partial summary judgment must be denied.

SO ORDERED.

      . Act of October 21, 1976, Pub.L. 94-583, 90 Stat. 2891, codified at 28 U.S.C. §§ 1330; 1332(a)(2)-1332(a)(4); 1391(f); 1441(d); and 1602-1611.
      The jurisdiction-conferring section of the FSIA, 28 U.S.C. § 1330, provides that “the district courts shall have original jurisdiction ... of any nonjury civil action against a foreign state ... as to any claim .for relief in personam with respect to which the foreign state is not entitled to immunity____”

      . The Second Circuit ruled in Verlinden that the CBN is an “instrumentality of a foreign state” under 28 U.S.C. § 1603(b), and therefore is a "foreign state" under § 1603(a). Thus, the claims against both Nigeria and CBN are suits "against a foreign state" under § 1330. 647 F.2d at 325. Obviously the claims against Nigeria and CBN are controversies with "foreign states, citizens or subjects" within Article III of the Constitution.

      . Even if this Court were to assume that these claims arise from a common nucleus of fact, it would be an unwise exercise of discretion to try them in the same lawsuit. The evidence involved in plaintiffs claim against London is primarily concerned with the extent and fraudulent nature of London's dealing with plaintiff. These transactions are wholly irrelevant to plaintiffs claims against Nigeria and CBN, and their inclusion in the same lawsuit can serve only to confuse and delay the just resolution of the main claims. At the same time, plaintiff's success against London is not dependent upon all of the complex issues that will be raised in the trial of the main claims. For these reasons, consolidating plaintiffs claim against London with its claims against CBN and Nigeria will overburden and complicate this federal lawsuit, contrary to any notions of judicial efficiency and fairness. Wisdom dictates that plaintiffs claim against London be pursued in a separate state court action.

      . The underlying facts alleged in plaintiff’s complaint are set forth in detail in this Court’s prior Opinion and Order dated September 22, 1982. See Tri-Ex Enterprises, Inc. v. Morgan Guaranty Trust Company of New York, et al., supra, at 3.

      . The original letter of credit was amended several times. See, e.g., Pl. ex. A; Def. ex. #4.

      . To invoke collateral estoppel against a party to a prior action, a litigant must demonstrate, at minimum, that:

      . This is not to say that Tri-Ex must demonstrate that it was ready, willing and able to perform at the time of the anticipatory breach in order to show that it was situated similarly to the Nikkei plaintiffs. As Tri-Ex aptly notes, a plaintiff’s inability to perform is a defense to a claim for damages arising from the breach but is not related to the occurrence of the breach itself. Cf. Scholle v. Cuban-Venezuelan Oil Voting Trust, 285 F.2d 318, 320 (2d Cir.1960).


source: Caselaw Access Project

author: MOYNAHAN, Chief Judge.

license: Public Domain

text:
    Clifford HENSLEY, Plaintiff, v. UNITED MINE WORKERS OF AMERICA HEALTH AND RETIREMENT FUNDS, et al., Defendants.
    Civ. A. No. 77-187.
    United States District Court, E.D. Kentucky, Lexington.
    Jan. 6, 1984.

      Hensley, Dunn & Ross, Horse Cave, Ky., for plaintiff.
    UMWA Health & Retirement Funds, Washington, D.C., for defendants.
   MOYNAHAN, Chief Judge.

This case involves a disabled miner’s dispute over the eligibility standards applied to award health and pension benefits under the 1950 UMWA Benefit Plan and Trust, and the 1950 UMWA Pension Plan. These union welfare funds are irrevocable trusts established through collective bargaining by the National Bituminous Coal Wage Agreement, under the authority of Section 302(c)(5) of the Labor Management Relations Act, 29 U.S.C. § 186(c)(5). This Act requires the Trustees of the Funds to administer the trust for the “sole and exclusive benefit of the employees.” The Funds are maintained by per tonnage contributions to the trusts from employers signatory to the Bituminous Coal Wage Agreement.

The parties have submitted the case for decision on cross motions for summary judgment. The pleadings and affidavits establish the following material facts.

Plaintiff Clifford Hensley worked as a UMW coal miner until he became disabled due to pneumoconiosis. All of his employers were signatory to the National Bituminous Coal Wage Agreement and plaintiff held positions that were “classified” for UMWA pension purposes. However, during the final nine months of his working life (March, 1970 — January, 1971), Hensley had a “non-classified” job as a Section Foreman for Westmoreland Coal Co., a signatory employer.

Based on the occupational disability caused by Black Lung, Hensley was awarded Workmen’s Compensation for 1971 and 1972 by the State of Virginia. Hensley also received Social Security Disability in 1971 and Federal Black Lung benefits beginning in December, 1970.

On December 17, 1973, the plaintiff applied for the health care benefits granted to disabled miners under the UMWA 1950 Benefit Plan & Trust (hereinafter the Trust). To be eligible a claimant must: (a) Be under 55; (b) Become disabled before December 6, 1974; (c) Be eligible for Social Security Disability Insurance; and (d) Have 20 years of classified credited service, of which 10 years was with a signatory employer. Article II C(5) of the Trust. The parties have agreed by stipulation that Hensley meets all requirements, except the provision requiring 20 years of credited service. Consequently, the Trustees denied health benefits to Hensley.

Having exhausted all intra-Union remedies, Hensley seeks judicial review under the jurisdiction granted by the Labor Management Relations Act, 29 U.S.C. § 185, and other statutes.

Plaintiff complains that the Trustees denial of eligibility was- erroneous and should be set aside as arbitrary and capricious and as a breach of the Trustees fiduciary duty; that the Trustees should be enjoined from applying the eligibility rules incorrectly and a declaration of plaintiff’s eligibility be issued; that even if the Trustees correctly applied the eligibility requirements, then the Court should invalidate the disputed requirement as violative of the Labor Management Relations Act and the Employee Retirement Income Security Act. Hensley also asks for attorney fees, costs, and other appropriate relief.

The decisive issue in the ease is whether the Trustees correctly determined that the plaintiff lacked the requisite 20 years of credited service. Credited service is calculated according to Article IV of the 1950 UMWA Pension Plan (hereinafter the Plan). Failure to meet the eligibility standards for health care benefits will ultimately defeat any claim plaintiff has to UMWA pension benefits. The defendant Trustees have stipulated that in accordance with Article IV B(l) of the Plan, the plaintiff has 18V4 years of credited service with a signatory employer. From this starting point, the plaintiff makes two claims for additional credited service.

First, an additional one quarter year is claimed for both 1946 and 1947. These two quarters credit were denied due to inadequate proof of hours or earnings. Another quarter year was claimed for 1960, but denied based on earnings records obtained from the Social Security Administration. Plaintiff argues that determination of these disputed credits is a factual issue, and as such, inappropriate for summary judgment. The defendant asserts that the court should uphold the Trustees denial of these credits, as a matter of law, if the Trustees decision was supported by substantial evidence. The defendants submitted evidence in support of their decision, but the plaintiff has rested on the allegations in his pleadings. Nevertheless, the issue is largely inconsequential, since granting the three quarters would increase the plaintiffs credited service to only 19 years.

Most important is plaintiffs second assertion that he is entitled to a year of service credit for each year he received Workmen’s Compensation. Recognition of credited service for Workmen’s Compensation awards is provided by two separate Plan provisions, each containing specific conditions. The dispute is over which provision applies to plaintiff.

Plaintiff contends that he is entitled to two years of non-signatory credit under Article IV A(3) which provides:

“ARTICLE IV — CREDITED SERVICE
A. Nonsignatory Service
Subject to the limitations in section C of this Article IV, credited service is a period during which the participant meets the requirements of subparagraphs (1), (2), (3), (4), or (5) below. Any credited service shall be nonsignatory service unless it qualifies as signatory service pursuant to Article IV(B) hereof.
(3) A participant shall receive credit for a year of service for any year in which he received state workmen’s compensation payments pursuant to an award as a result of an occupational disease or injury sustained in the mine while regularly employed in a classified job under the bituminous coal wage agreement then in effect, provided, in the case of occupational disease, the participant had been so employed by an Employer signatory to the Wage Agreement then in effect for at least ten (10) years after May 28, 1946. Credit shall be given up to a maximum of four (4) years service credit from date of injury, or from the date of last employment in case of occupational disease provided the participant did not work regularly during the compensable period.”

Defendants argue that since Hensley worked for a signatory employer any service credit date must be governed by Article IV B(2) on signatory service.

“B. Signatory Service

Credited signatory service is:

(1) Service as defined in paragraph A(3) hereof during which a participant worked, after May 28, 1946, as an employee in a classified job for an Employer signatory to the bituminous coal wage agreement then in effect.
(2) Service as defined in paragraph A(3) hereof during which a participant received state workmen’s compensation payments if such payments are pursuant to an award as a result of an occupational disease or injury awarded after May 28, 1946, and if the participant was last regularly employed prior to such service as an employee in a classified job for an Employer signatory to the bituminous coal wage agreement then in effect.”

In application Article IV B(2) expressly conditions signatory credit for workmen’s compensation on the participant holding a classified job prior to the workmen’s compensation award. Because the plaintiff was last employed in a non-classified Foreman’s job, defendants argue that plaintiff can receive no additional credit based on the award.

The Plan defines Credited Service to mean “signatory and non-signatory service determined pursuant to Article IV.” This allows years spent with different employers to be cumulated. The plaintiff claims credit for workmen’s compensation under the non-signatory provisions although he worked for a signatory employer at all relevant times. Plaintiff’s argument is based on the definition of non-signatory service set out in Article IV A: “Any credited service shall be non-signatory unless it qualifies as signatory service pursuant to Article IV B(2) hereof.” The defendant Trustees refused to give any credit based on plaintiff’s workmen’s compensation because the award was derived from signatory employment and under Article IV B(2) no credit was allowable due to the condition on last employment. Plaintiff deems this refusal arbitrary and capricious and contrary to the definition of non-signatory service.

Both plaintiff and defendants argue their constructions of the Plan in a bold and conclusive manner. Plaintiff urges Article IV A(3) treatment by negative implication and because of equitable considerations. Defendants urge Article IV B(2) treatment largely because the Trustees’ decisions are entitled to “great deference”.

The joint requirements of (a) 20 years of credited service, coupled with (b) 10 years of employment by a contributing signatory employer, provide the only reason for a signatory/non-signatory distinction. The Article IV A definition (Any credited service shall be nonsignatory unless it qualifies as signatory service pursuant to Article IV B hereof.) relied on by plaintiff, indicates that service credit may be given which applies to the 20 year requirement, however only service which meets the more strict standards of Article IV B can be applied to the 10 year requirement. Consequently, the distinction operates to foreclose claimants having 20 years of cumulative service, but who lack the required 10 years of signatory employment.

Non-signatory service credit is more liberally provided for in the Plan. Article IV allows credited service for (1) service after 1936, including years where work records are unavailable; (2) service before 1937; (3) for occupational disability awards; (4) for employment as a Union representative; or (5) credit for war service.

Article IV B signatory credit is restricted to (1) actual years worked in a union mine, or (2) credit for occupational disability awards if the claimant was “last regularly employed____as an employee in a classified job for an Employer signatory.”

Defendants argue that it is reasonable to consider an individual’s last employment because it “guarantees that credit will not be given for awards arising out of non-classified employment.” (Defendants’ reply to plaintiff’s cross motion, p. 5.) However reasonable this approach may be, the Trustees’ denial of non-signatory credit for plaintiff’s workmen’s compensation award effects a disfavorable forfeiture to a miner having substantial signatory service and no non-union employment.

No Plan provision requires that credited service be determined exclusively under either IIA or ¶ B of Article IV. Clearly these two provisions overlap in their coverage and, years of signatory and non-signatory service may be aggregated. Assuming the plaintiff needed signatory credit to meet the 10 year requirement, then his years of workmen’s compensation would not qualify him, because of the “last regularly employed” condition in Article IV B(2). In fact the plaintiff has sufficient signatory service and Article IY A(3) grants him non-signatory credit for the workmen’s compensation awarded for his occupational disability. This provision requires that the award be the “result of an occupational disease or injury sustained in the mine while regularly employed in a classified job”, and thereby the Fund is protected from claims arising after the individual has worked in another job. Plaintiff submitted diagnostic proof that his Black Lung condition was the result of working as a miner in a signatory coal mine, prior to becoming a Section Foreman.

Therefore, the Trustees’ denial of non-signatory service credit based on an interpretation not supported by the express provisions of the Plan was incorrect. The only remaining question is one of the remedy under the applicable standard of review.

Under prevailing law, the Court must apply the arbitrary and capricious standard in reviewing the Trustee’s decision. The defendants contend that the Trustees’ interpretation of the Plan provisions was reasonable and that “it is for the trustees, not judges, to choose between various reasonable alternatives.” Roark v. Lewis, 401 F.2d 425, 429 (D.C.Cir.1968).

The Trustees’ determination of plaintiff’s credited service exclusively under the signatory service provisions and without regard to any non-signatory entitlement is deemed arbitrary by plaintiff. Plaintiff contends that the Trustees cannot limit eligibility by a technical reading of the Plan. Instead, he urges that the Plan should be construed in favor of the intended beneficiaries.

The Trustees’ decision may be invalidated under the arbitrary and capricious standard, if the denial of benefits was irrational or not based on the relevant Plan provisions. However, where the interpretation of an eligibility requirement is deemed reasonable and supported by substantial evidence, the reviewing Court should not find the Trustees’ interpretation to be arbitrary or capricious. Haynes v. Lewis, 298 F.Supp. 331 (D.D.C.1969).

Alternatively, if the Trustees interpretation is upheld as lawful, then the plaintiff asks the Court to invalidate the “last employed in a classified job” requirement. Plaintiff cites persuasive authority in which inequitable conditions on benefits eligibility were invalidated. Both Roark v. Boyle, 439 F.2d 497 (D.C.Cir.1970) and Patterson v. UMWA Welfare & Retirement Fund. 346 F.Supp. 11 (E.D.Tenn.1971) ruled that a trustees’ resolution requiring an applicant to have worked his last year of employment with a signatory employer was invalid as arbitrary and inequitable when applied to exclude miners with substantial signatory experience. In Pete v. UMWA Welfare & Retirement Fund of 1950, 517 F.2d 1275 (D.C.Cir.1975), en banc, again repudiated the “last year” rule saying that it could not validly be the exclusive criterion for rewarding “substantial signatory service”, but the Court approved the reasonableness of a total of five signatory years service criterion. However, Pete was a series of class actions and the rulings plaintiff cites were largely based on the inequity of the “last year” requirement as it applied to all miners. The Hensley case before this Court presents a unique situation dissimilar from the cases plaintiff cites. Although the Court h.°s power to invalidate unfair eligibility standards, the provision here in issue seems to serve a reasonable Trust purpose.

The Plan requires that a miner be last employed in a classified job before he can receive signatory credit for a workmen’s compensation award. The provision relied on to deny Hensley’s claim is not a discriminatory or exclusive criterion applied to deny benefits. As applied to Hensley, the requirement works a hardship, but as applied to all miners it seems fair and reasonable, in light of Trust purposes. Since the requirement is presumed valid, Hensley can be granted relief only if the Trustees’ interpretation of the signatory and non-signatory provisions is found to have been arbitrary and capricious.

The Court finds that the trustee’s interpretation of the signatory and non-signatory provisions is arbitrary and capricious under the facts of this case. The plaintiff suffering from Black Lung after I8V4 years of signatory service undertook to work in a “non-elassified job” as a section foreman for Westmoreland Coal Company, a signatory employer, during the last nine months of his working life. He was unable to discharge the duties either of his regular employment or of this job and finally retired, drawing both Federal Black Lung Benefits and Social Security Disability. The employment was really “make work” which he desired to do and which the company provided him as a long-time valued employee who was no longer able to work as a miner. If he had elected to quit when he first became disabled, his Workmen’s Compensation Benefits would have carried him past the twenty (20) years of credited service requirement and he would be eligible for the benefits which he seeks. He should not be penalized because he tried to continue to work in a less physically demanding position and his employer attempted to accommodate his commendable effort. The Court will this day enter a Judgment sustaining the plaintiff’s motion for Summary Judgment.

Finally, plaintiff’s complaint asks for attorney fees. It appear that even if plaintiff prevails, fees should not be granted under the “American rule”. The subject of attorney’s fees in suits under the Labor Management Relations Act are discussed in International Ass’n of Machinists & Aerospace Wkrs. v. Sargent Industries, 63 F.R.D. 623 (N.D.Ohio 1974).


author: KOCORAS, District Judge:

text:
    Steve RODGERS, Plaintiff, v. LINCOLN TOWING SERVICE, INC., an Illinois corporation; The City of Chicago; Philip R. Pagano, Detective of the Police Department of the City of Chicago; Steve Mash, Manager, Lincoln Towing Service, Inc.; William McGarry, Detective of the Police Department of the City of Chicago; Stephen Eisgrau; and Police Commissioner of the City of Chicago, Defendants.
    No. 83 C 7038.
    United States District Court, N.D. Illinois, E.D.
    March 29, 1984.
    On Motion For Reconsideration Sept. 25, 1984.

      Mark H. Heilman, Judith L. Grubner, Stern & Heilman, Judith S. Sherwin, Gut-stein & Sherwin, Chicago, 111., for plaintiff.
    Paul M. Sheridan, Asst. Corp. Counsel, Chicago, 111., for defendants City of Chicago, Philip R. Pagano, William McGarry, and Police Commissioner.
    Jon W. Knudson, Law Offices of Jon W. Knudson, Chicago, 111., for defendants Lincoln Towing Service, Inc., Steve Mash, and Stephan Eisgrau.
   MEMORANDUM OPINION

KOCORAS, District Judge:

In this civil rights action the plaintiff sues the City of Chicago, the superintendent of the Chicago Police Department, two individual Chicago police officers, a private corporation, and two of its employees over the events arising from the towing of his car from the parking lot of the Belden Corned Beef Center on October 7, 1982.

The plaintiff has put together a lengthy complaint that asserts claims under virtually every conceivable theory. Using the Bill of Rights as a starting point, the plaintiff claims under 42 U.S.C. § 1983 that the defendants violated his rights under the first, fourth, fifth, sixth, s venth, and eighth amendments. Not overlooking the later amendments, the plaintiff adds a claim for denial of due process under the fourteenth amendment. The plaintiff next invokes 42 U.S.C. §§ 1985 and 1986, charging that the defendants engaged in a conspiracy to abridge his rights because of their animus towards a class to which he belongs. For good measure, the plaintiff also has thrown in an array of pendent claims under Illinois law. To encompass all of these charges, the plaintiff’s amended complaint runs seventeen pages in length. This complaint is not the product of a pro se plaintiff untutored in the law. The plaintiff in this case is represented by not one but three lawyers, two of whom are members of the bar of this court.

The matters now before the court are motions by the various defendants to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.

In order to place the legal issues in proper perspective it is necessary to set out in some detail the facts alleged in the amended complaint. The operative facts — as distinct from the mere legal conclusions with which this complaint is riddled, and upon which the pleader may not rely, see, e.g., Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648, at 654-655 (7th Cir.1984)— are as follows. The plaintiff parked his car in the Belden Corned Beef Center’s private parking lot and went inside for an hour. When he came out his car was gone. He learned that his car had been towed away by defendant Lincoln Towing Service, a private company retained by the Corned Beef Center to keep its lot clear of illegally parked cars. The plaintiff went to Lincoln Towing’s place of business, paid the towing fee, and retrieved his car. He then went home.

A week later the plaintiff was called on the telephone by Detective Pagano of the Chicago Police Department. Pagano told the plaintiff that a complaining witness had identified him as the person who had recently thrown paint on the Lincoln Towing building. Pagano asked the plaintiff to come to the police station to discuss the matter and warned him that a warrant might be issued for his arrest. Pagano did not advise the plaintiff of his constitutional rights during this telephone conversation. Three days after Pagano called, the plaintiff finally showed up at the station. No warrant had been issued in the meanwhile.

At the station, Pagano and another detective by the name of McGarry questioned the plaintiff for an hour regarding the complainant’s accusation that he had thrown paint on the Lincoln Towing building. The officers did not advise the plaintiff of his constitutional rights, and he steadfastly denied any knowledge of the vandalism. Two employees of Lincoln Towing were present as the plaintiff was questioned, and they demanded that the police file a complaint against him. Detective Pagano finally drafted a complaint, and it was signed by one of the Lincoln Towing employees as the complainant.

The plaintiff was then placed in a cell at the station, where he was held until he was released at 5 a.m. the next morning. Although the plaintiff told Detective Pagano that he had money to post bail, he was not given an opportunity to do so until the morning. The plaintiff was eventually brought to trial on the charge of throwing paint on the Lincoln Towing building and the two Lincoln Towing employees testified against him, but he was found not guilty.

Rule 11 of the Federal Rules of Civil Procedure was amended effective August 1,1983. As the advisory committee’s notes make clear, this amendment was enacted for the specific purpose of curbing the filing of complaints and other papers that lack a proper foundation in law and fact. The amendment represented a substantial tightening of the standards for attorney conduct over those which had prevailed under former rule 11. In addition to the affirmative duty of prefiling inquiry into the facts and law that it places upon attorneys, the new rule places an obligation on the district courts to step ii and police abuses. See Fed.R.Civ.P. 11 (as amended Apr. 28, 1983, effective Aug. 1, 1983) advisory committee notes on 1983 amendment (“The detection and punishment of a violation of the signing requirement, encouraged by the amended rule, is part of the court’s responsibility for securing the system’s effective operation.”); Miller & Culp, Litigation Costs, Delay Prompted the New Rules of Civil Procedure, Nat’l L.J., Nov. 28, 1983, at 24, 34 (“Note the ... words ‘its own initiative,’ which is an attempt to place an obligation for policing Rules 7 and 11 on the court.”).

The amended complaint in this case was filed four months after the new rule became effective. At least with respect to the federal claims, the complaint is in direct contravention of the rule. Most of those claims have no arguable basis in existing law. A reasonable amount of research before the document was drafted, which is all the new rule requires, would have revealed that to the plaintiffs three lawyers.

The problems begin with the laundry list of claims under section 1983. Some of them are patently frivolous. For example, there is no basis whatever for claiming a first amendment violation in the facts alleged. Not a single allegation even remotely suggests such a violation. Similarly, there is not the slightest justification for a seventh amendment claim. That amendment provides the right to a jury trial in certain civil cases tried in the federal courts. See, e.g., United States v. Hutul, 416 F.2d 607, 626 (7th Cir.1969), cert. denied, 396 U.S. 1012, 90 S.Ct. 573, 24 L.Ed.2d 504 (1970); Gustafson v. Peck, 216 F.Supp. 370, 371 (N.D.Iowa 1963). It is not possible that a reasonable lawyer could read that amendment and think it had been violated under the facts of. this case. It is totally irrelevant in these circumstances. Nevertheless, it is cited in this complaint as one of the grounds for the plaintiff’s federal claims.

The eighth amendment proscribes cruel and unusual punishment, excessive bail, and excessive fines. Nothing in the facts alleged fits within the ambit of the kind of conduct the cases say is prohibited by this amendment. See, e.g., Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (“Today the Eighth Amendment prohibits punishments which, although not physically barbarous, ‘involve the unnecessary and wanton infliction of pain,’ ... or are grossly disproportionate to the severity of the crime____” (citations omitted)); Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976) (deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the eighth amendment); Hickman v. Hudson, 557 F.Supp. 1341, 1344 (W.D.Va.1983) (“[T]he unjustified or excessive use of force or infliction of bodily harm upon a prisoner amounts to cruel and unusual punishment when such is inspired by malice or sadism for the purpose of causing harm____”). See also State Bank of St. Charles v. Camic, 712 F.2d 1140, 1145-46 (7th Cir.), cert. denied, — U.S. —, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983); Risner v. Duckworth, 562 F.Supp. 378 (N.D.Ind.1983); Emory v. Duckworth, 555 F.Supp. 985 (N.D.Ind.1983). Moreover, since the plaintiff in this case had not been found guilty of any crime during the time he was at the police station he cannot assert a claim based on the eighth amendment’s prohibition against cruel and unusual punishment in any event. See, e.g., Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1872 n. 16, 60 L.Ed.2d 447 (1979); Ingraham v. Wright, 430 U.S. 651, 671-72 n. 40, 97 S.Ct. 1401, 1412-13 n. 40, 51 L.Ed.2d 711 (1977); Barnier v. Szentmiklosi, 565 F.Supp. 869 (E.D.Mich.1983); Watson v. McGee, 527 F.Supp. 234 (S.D. Ohio 1981).

The sixth amendment right to counsel does not attach until the initiation of adversary judicial criminal proceedings. See, e.g., Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). And as the Seventh Circuit held last July, there is no sixth amendment right “to place a phone call, be it to an attorney or family members.” State Bank of St. Charles v. Camic, supra, at 1145 n. 2. See also Guenther v. Holmgreen, 573 F.Supp. 599 (W.D.Wis.1983). There is thus no basis for a sixth amendment claim here.

The plaintiff’s fifth amendment claim based on the failure of the police to give him the warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is equally unsupported by a good legal foundation. The judicially created right to such warnings does not arise absent custodial interrogation. A person is not in custody for Miranda purposes when the police merely call him on the telephone. Nor is a suspect who voluntarily presents himself at the police station and remains free to go until a formal complaint is signed in custody. See, e.g., California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983); Or egon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). Cf Minnesota v. Murphy, — U.S.-, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). More importantly, however, even if it were to be assumed for the sake of argument that the plaintiff should have been given Miranda warnings at some point, the failure to give them did not deprive him of any constitutional right. There is no constitutional right to Miranda warnings. See, e.g., Guenther, supra, at 601 (citing Thornton v. Buchmann, 392 F.2d 870, 874 (7th Cir.1968); O’Hagan v. Soto, 523 F.Supp. 625, 629 (S.D.N.Y.1981)). Further, it is clear from the plaintiffs own allegations that he never confessed to anything. When the police inquired, he denied any knowledge of the paint throwing incident. It therefore can hardly be suggested that he was compelled to incriminate himself.

As for his fourth amendment claim, the plaintiff apparently is relying, at least in part, on the theory that he was arrested in violation of the fourth amendment the moment the police officer telephoned him and asked him to come to the station. As an initial matter, entirely apart from the question of whether the officer had some objective justification for making this call in fourth amendment terms (i.e., probable cause or reasonable suspicion that the plaintiff had committed a crime), there is the question of whether this may be viewed as a “seizure” that brings the fourth amendment into play. The plaintiff blithely assumes that the officer’s telephone call amounted to a seizure. But even a casual perusal of recent fourth amendment cases reveals the legal infirmity of this position. Fourth amendment doctrine has for some time been moving in a direction that is quite unsupportive of a claim that a person can be “seized” by means of a mere telephone call. In United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 1877-78, 64 L.Ed.2d 497 (1980), the Supreme Court said:

We adhere to the view that a person is “seized” only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards____ As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.
We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.

This view was adopted by the Seventh Circuit in United States v. Black, 675 F.2d 129 (7th Cir.1982), cert. denied, 460 U.S. 1068, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983). The court concluded that “as long as a person remains at liberty to disregard a police officer’s request for information, no constitutional interest is implicated.” Id. at 134. See also United States v. Notorianni, 729 F.2d 520 (7th Cir.1984); United States v. Morgan, 725 F.2d 56 (7th Cir. 1984); United States v. Cordell, 723 F.2d 1283 (7th Cir.1983). State courts have reached the same conclusion in a variety of contexts. See, e.g., People v. Reed, 104 Ill.App.3d 331, 60 Ill.Dec. 80, 432 N.E.2d 979 (1982); People v. Miller, 89 Ill.App.3d 973, 45 Ill.Dec. 42, 412 N.E.2d 175 (1980), cert. denied, 454 U.S. 871, 102 S.Ct. 339, 70 L.Ed.2d 175 (1981). Even in the heyday of fourth amendment expansionism, it was never thought that all contacts between the police and persons they suspected of criminal activity constituted seizures under the fourth amendment. As Justice White observed in his concurring opinion in Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889 (1968), “There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.” See also Dunaway v. New York, 442 U.S. 200, 222, 99 S.Ct. 2248, 2261, 60 L.Ed.2d 824 (1979) (Rehnquist, J., dissenting) (“There is obviously nothing in the Fourth Amendment that prohibits police from calling from their vehicle to a particular individual on the street and asking him to come over and talk with them; nor is there anything in the Fourth Amendment that prevents the police from knocking on the door of a person’s house and when the person answers the door, inquiring whether he is willing to answer questions that they wish to put to him.”). Just as a citizen approached on the street by a policeman ordinarily is under no compulsion to cooperate and may go on his way, the plaintiff in this case was free to decline the officer’s request to come to the station and could have demanded that the officer secure his presence by means of an arrest pursuant to a warrant if he wanted to talk to him. There is not even a question in this case of whether the plaintiff thought he was free to walk away from the officer. There was no need to walk away. The officer certainly was not in a position to exert any physical control over the plaintiff. See, e.g., Curran v. Dural, 512 F.Supp. 699, 703 (E.D.Pa.1981) (no arrest where there was no confrontation between plaintiff and officer in which officer could have restrained plaintiff’s freedom). Moreover, in contrast to the usual situation in which an officer is physically present and displays his badge to a person he wants to question, the plaintiff here had no way of knowing that the strange voice on the other end of the line actually was a police officer. If the plaintiff did not want to listen to what the caller was saying he had but to hang up the phone. And while the test is an objective one, the conclusion that a reasonable person in the plaintiff’s position would have felt entirely free to go about his business after the call is fortified by the plaintiff’s subjective reaction. He did not bestir himself to go see what the officer wanted until three days had passed. This cuts the ground from under any notion that he felt himself under the officer’s' control such that his freedom of movement was restrained.

The only reasonable fourth amendment claim in this situation would have to be based on the arrest that eventually occurred at the station. But that arrest, which was made by Pagano, was based on the complaints of two private citizens and was made only after one of them signed a formal, written complaint. Pagano was entitled to believe these witnesses and was not required to credit the plaintiff’s denials. See, e.g., McKinney v. George, 726 F.2d 1183, at 1187 (7th Cir.1984) (“If policemen arrest a person on the basis of a private citizen’s complaint that if true would justify the arrest, and they reasonably believe it is true, they cannot be held liable for a violation of the Constitution merely because it later turns out that the complaint was unfounded.”); Lenard, v. Argento, 699 F.2d 874, 884-85 (7th Cir.), cert. denied, — U.S.-, 104 S.Ct. 69, 78 L.Ed.2d 84 (1983) (test is whether officer believed in good faith that arrest was made with probable cause and whether that belief was reasonable, and even though officers did not witness offense themselves it was reasonable for them to believe that probable cause for arrest existed based on statement of complaining witness); Curran, supra, at 704 (in assessing existence of probable cause for arrest officer is entitled to give credence to report of complaining witness and to disbelieve exculpatory statements made on suspect’s behalf). Thus, there is no fourth amendment violation stated against Pagano. There is similarly no basis for a claim under the fourth or any of the other cited amendments against Detective McGarry, who merely asked the plaintiff some questions.

The closest the plaintiff comes to stating a claim against the individual officers is his allegation that he told Pagano he had money to post bail but was held overnight anyway before he was released. Superficially, this has some of the earmarks of a claim for denial of liberty without due process of law. However, in the absence of any allegation that an arrestee in the plaintiff’s position should have been released sooner in the normal course of things and that Pagano somehow prevented this, no claim is stated. An arrestee does not have a constitutional right to be released on bail before the various booking procedures attending the arrest can be completed. In addition, even if the plaintiff was detained somewhat longer than he should have been before he was allowed to post bail, he has a tort remedy for that claim under Illinois law- Therefore, whatever slight deprivation of liberty he . may have sustained cannot be said to have occurred without due process of law, and he has no claim under section 1983. See Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); State Bank of St. Charles v. Camic, supra, at 1146-48; Guenther, supra, at 600-01.

What the plaintiffs lawyers have failed to realize in their haste to throw together a complaint and jump on the section 1983 bandwagon is that “[t]he Bill of Rights and later amendments ... encompass important statements of specific principles. They are not a magical incantation that one recites to draw down the wrath of the Court upon defendants.” Martinez v. Winner, 548 F.Supp. 278, 287 n. 10 (D.Colo. 1982). The section 1983 claims against the two individual officers appear to have been assembled by reaching into the constitution much as one reaches into a grab bag. And like the trinkets usually found in a grab bag these claims have no real value. Accordingly, the section 1983 claims against the two individual officers are dismissed.

The section 1983 claims against the city and the police superintendent fail for lack of a claim against the individual officers. If the officers did not violate the plaintiffs constitutional rights, it makes no difference whether they acted pursuant to a municipal policy. See, e.g., McKinney, supra, at 1190. There is no basis for a section 1983 action against anyone if the plaintiff was not deprived of some right secured by the Constitution or laws of the United States. E.g., Reichenberger v. Pritchard, 660 F.2d 280 (7th Cir.1981). Moreover, these claims are based on wholly conclusory allegations of a de facto municipal policy. Such boilerplate allegations of an official policy, the existence of which is to be inferred not from something the municipality did but rather from its inaction, constitute one of the most prevalent forms of abuse in section 1983 actions. While paying lip service to the doctrine of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), allegations such as these are now used to justify the addition of the municipality as a defendant in virtually every section 1983 case against individual municipal employees in a transparent attempt to circumvent the Monell Court’s explicit rejection of a respondent superior theory of municipal liability under section 1983. The municipality can then be dragged into what one respected commentator has called “the swamp of discovery,” Miller & Culp, supra, at 24, in the hope that it will capitulate or that by rooting through its records the plaintiff’s lawyer can unearth something to prop up his otherwise unsupported hypothesis. Because of this enormous potential abuse, a plaintiff wishing to assert such a claim must plead facts tending to show a pattern of illegal conduct going beyond a single incident of wrongdoing. See Giarrusso v. City of Chicago, 539 F.Supp. 690 (N.D.Ill.1982); Rivera v. Farrell, 538 F.Supp. 291 (N.D.Ill.1982); Smith v. Ambrogio, 456 F.Supp. 1130 (D.Conn.1978). See also Lenard, supra; Wellington v. Daniels, 717 F.2d 932 (4th Cir.1983). This is nothing more than what is required by rule 11. If a lawyer knows of no instances of similar wrongdoing beyond his client’s case and otherwise has no reasonable factual basis for thinking that a de facto municipal policy exists which caused his client’s injury, he has no business attaching a conclusory allegation of “policy” to his client’s complaint on the off chance that he may be able to dredge up some factual support for that allegation if the court will permit him to conduct exhaustive discovery. This is not to say that lawyer is required to know specific, highly detailed facts before undertaking discovery. It simply means that he has a duty before making such an allegation to make “reasonable inquiry” to see that “it is well grounded in fact.” Fed.R.Civ. P. 11. The section 1983 claims against the city and superintendent are dismissed.

The section 1983 claims against the private defendants are without merit. A private citizen does not become a state actor just because he reports a crime and the police rely on his report to make an arrest. See, e.g., Grow v. Fisher, 523 F.2d 875, 879 (7th Cir.1975) (“The mere fact that the individual defendants were complainants and witnesses in action which itself was prosecuted under color of law does not make their complaining or testifying other than what it was, i.e., the action of private persons not acting under color of law.”); Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983) (“We know of no case in which the report of a state crime is action under color of state law under § 1983.”); Taylor v. Nichols, 558 F.2d 561, 564 (10th Cir.1977) (“The acts of filing a claim and testifying at trial do not constitute state action. These are private acts.”). See also McKinney, supra, at 1190. Nor does a private person become a state actor by virtue of a conelusory allegation that he conspired with someone acting under color of state law. See, e.g., Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204 (7th Cir.1980); Sparkman v. McFarlin, 601 F.2d 261 (7th Cir.1979) (en banc). The section 1983 claims against these defendants are dismissed.

As the foundation for his section 1985 conspiracy claims, the plaintiff alleges that he is a member of a class consisting of “persons frequenting the area on the Northside of Chicago who use public parking lots which are patroled [sic] by the LINCOLN TOWING SERVICE and who are a class of persons which Defendant LINCOLN TOWING SERVICE seeks to-harass [sic] and intimidate.” Amended Complaint ¶ 24. He says the defendants conspired to deprive him of his rights because he belonged to that class. As an initial matter, the plaintiff’s conspiracy allegations are the very sort of hazy, conelusory allegations that have repeatedly been condemned by the courts. Copious use of the words “agreement,” “in concert,” and “conspiracy” does not create a conspiracy. What is needed are facts, yet facts are few and far between in this complaint, and what factual allegations there are do not suffice to show an actionable conspiracy. See, e.g., Jafree v. Barber, 689 F.2d 640, 644 (7th Cir.1982) (conspiracy allegation “must be supported by material facts, not conelusory statements”); Goldschmidt v. Patchett, 686 F.2d 582, 585 (7th Cir.1982) (conspiracy requires factual allegations showing a meeting of minds); Tarkowski, supra; Sparkman, supra; Benavidez, supra, at 618 (allegations of conspiracy in conelusory language are not enough); Tosta v. Hooks, 568 F.Supp. 616, 620 (E.D.Pa. 1983) (absent allegations of specific conduct terse reference to a conspiracy adds nothing); Martinez, supra, at 326 (conspiracies under § 1985 must be pleaded with more than bare allegations that all defendants “conspired” to deprive plaintiff of his constitutional rights).

Beyond that problem, which in itself justifies dismissal of the conspiracy claims, there are more serious flaws. The Supreme Court stated in United Brotherhood of Carpenters and Joiners v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), five months before the amended complaint was filed in this case, that it is a close question whether section 1985(3) was intended to reach any class based animus other than animus against blacks and those who support them. The Court’s language in Scott leaves little room to think that section 1985(3) reaches any conspiracies other than those motivated by racial bias. See, e.g., Nilan v. De Meo, 575 F.Supp. 1225 (E.D.Pa.1983) (finding it an implicit teaching of Scott that section 1985(3) does not reach conspiracies motivated by animus against a political group). But even if the statute does extend somewhat beyond strictly racial classes, it clearly does not apply where there is no discrete, insular class defined by invidious criteria, but only an amorphous, ill-defined group of people who share no common characteristics save a penchant for parking their cars where they may get towed away. See, e.g., Creative Environments, Inc. v. Estabrook, 680 F.2d 822 (1st Cir.), cert. denied, 459 U.S. 989, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982); Shortbull v. Looking Elk, 677 F.2d 645 (8th Cir.), cert. denied, 459 U.S. 907, 103 S.Ct. 211, 74 L.Ed.2d 168 (1982). There is no doubt whatever, especially after Scott, that section 1985(3) does not reach conspiracies motivated by animus against people who park in certain parking lots. In light of recent cases, and for that matter even under the older cases, this is a frivolous and indefensible position. Indeed, the plaintiffs complaint may fairly be interpreted as claiming that the defendants engaged in a conspiracy motivated by bias towards others on account of their economic views, status, or activities. If this is so, it flies directly in the face of Scott, which explicitly held that conspiracies motivated by economic or commercial animus are beyond the reach of section 1985(3). This is not truly surprising, however, since the plaintiffs submissions make it plain that his lawyers remain oblivious of the Scott case even though it was decided eight months ago and they could have discovered it with ease had they simply Shepardized the Court’s 1971 decision in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338, which they do know about. The same analysis forecloses any possible claim under the second part of section 1985(2) that may be lurking in the plaintiff’s nebulous conspiracy allegations. See, e.g., Mines v. Kahle, 557 F.Supp. 1030, 1036 (W.D.Pa.1983); Martinez, supra, at 324. Cf. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). Accordingly, all of the section 1985 conspiracy claims against all defendants are dismissed.

And since there can be no claim under section 1986 absent a valid claim under section 1985, the section 1986 claims are also dismissed. See, e.g., Williams v. St. Joseph Hospital, 629 F.2d 448, 452 (7th Cir.1980); DeBoer v. Martin, 537 F.Supp. 1159, 1162 (N.D.Ill.1982); Martinez, supra, at 328.

, There being no valid federal claims, all of the plaintiff’s state law claims are dismissed for lack of pendent jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Mandarino v. Pollard, 718 F.2d 845, 850 (7th Cir.1983). See also Laird v. Board of Trustees, 721 F.2d 529, 534-35 (5th Cir.1983).

With even the modest research that is now required under rule 11, any lawyer admitted to practice before this court quickly should have determined that this relatively minor incident did not amount to a federal case of constitutional dimension. At any rate, what would not have been done after proper research was what occurred here: the filing of a ponderous, extravagant, and overblown complaint that was largely devoid of a colorable legal basis. This was a clear-cut violation of rule 11. In such cases under the new rule, the court has a duty to impose an “appropriate” sanction on the offending attorney. The imposition of such a sanction no longer requires a finding of subjective bad faith, see Badillo v. Central Steel & Wire Co., 717 F.2d 1160, 1166-67 (7th Cir.1983) (decided under former rule 11), or a willful violation of the rule, see Fed.R.Civ. P. 11 advisory committee notes, s' pra, (“The reference in the former text to wilfulness as a prerequisite to disciplinary action has been deleted.”). And the court may act without inquiring into the lawyer’s'state of mind, particularly where, as here, the court can determine from the face of the pleading itself that it was not based on a plausible view of the law.

In this case, the court concludes that it is an appropriate sanction to require the plaintiff’s lawyers to pay one third of the fees and costs incurred by the defendants in connection with their motions to dismiss the amended complaint. The defendants shall submit documentation of such fees and costs within 10 days from the date this order is docketed.

ON MOTION FOR RECONSIDERATION

The plaintiff has filed a motion for reconsideration under rule 59(e) together with a supporting memorandum and affidavits. This motion has two parts.

First, the plaintiff argues that I should not have dismissed his amended complaint. He says I misinterpreted some of the allegations in the amended complaint, principally his admission that three days elapsed between the detective’s telephone call and the plaintiff’s appearance at the police station. Although it was not stated anywhere in the amended complaint, the plaintiff now explains that he waited three days to go to the police station because that was when he had arranged an appointment to meet the detective. This fact, even had it appeared in the amended complaint — which, like most of the other “facts” the plaintiff now purports to rely on, it did not, see Stenger v. R.H. Love Galleries, Inc., 741 F.2d 144, at 146 (7th Cir.1984) (“We will dispense with plaintiff’s briefs and instead rely upon the complaint for the facts.”); Dillard v. Rumph, 584 F.Supp. 1266, 1267-68 (N.D.Ga.1984) (arguments in plaintiff's brief “are not the appropriate means to raise claims that are nowhere clearly set forth in the complaint”) — does not convert a mere telephone call into a “seizure” under the fourth amendment. And to continue to suggest otherwise in the face of the authorities to the contrary which I cited in my prior opinion is to engage in an obdurate refusal to face reality. This mind-set, this stubborn persistence in trying to distort or ignore controlling authority in an effort to cobble together some kind of section 1983 claim at any cost is the very reason I felt this was an appropriate case to apply the sanctions provision of the amended version of rule 11.

Under the few sketchy facts that do appear in the amended complaint it is clear that the soonest any fourth amendment claim possibly could have arisen was at some point after the plaintiff’s arrival at the station house. But as I stated in my earlier opinion, there are no facts alleged which support a fourth amendment claim. To be sure, the plaintiff ultimately was arrested, and the fact of the arrest is alleged. But it does no good simply to say you were arrested and then tack on a conclusory assertion that the arrest was unconstitutional. Notice pleading does not permit you to plead a civil rights case merely by stating the bald legal conclusion that the defendant violated your rights under one or another of the amendments. The authorities, including those that control in this circuit, say just the opposite. See, e.g., Winterland Concessions Co. v. Trela, 735 F.2d 257, 262 (7th Cir.1984); Jafree v. Barber, 689 F.2d 640, 643 (7th Cir.1982); Cohen v. Illinois Institute of Technology, 581 F.2d 658, 663 (7th Cir.1978), cert. denied, 439 U.S. 1135, 99 S.Ct. 1058, 59 L.Ed.2d 97 (1979); Maloney v. Washington, 584 F.Supp. 1263, 1265, 1266 (N.D.Ill.1984) (conclusory allegations in a civil rights case “cannot support a well-pleaded claim for relief”; “specific facts” are required); Antonelli v. Burnham, 582 F.Supp. 1067, 1071 (N.D.Ill.1984) (“It is not part of this Court’s responsibility [in assessing a § 1983 complaint] to intuit claims from loosely-knit narratives.”); Crumpacker v. Civiletti, 90 F.R.D. 326, 330 (N.D.Ind.1981) (criticizing the plaintiffs’ “buckshot method of pleading” in a civil rights case as placing an “ 'urdue burden on the court and [opposing] counsel to determine how plaintiff is here and why.’ ”); Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir.1984) (“Even under the so-called notice rules of pleading, the complaint must state a cause of action sufficient to affirmatively show the plaintiff is entitled to relief____ In civil rights and conspiracy actions, courts have recognized that more than mere conclusory notice pleading is required. In civil rights actions, it has been held that a complaint will be dismissed as insufficient where the allegations it contains are vague and conclusory.”); Sell v. Barner, 586 F.Supp. 319, 321 (E.D.Pa.1984) (“It is axiomatic that a civil rights complaint must be pleaded with specificity sufficient to provide fair notice to defendants of the substance of plaintiff’s claims and the grounds upon which they rest____ Where a complaint ‘relies on vague and conclusory allegations [it] does not provide “fair notice” and will not survive a motion to dismiss.' ... Neither the defendants nor the Court can be required to piece together in jigsaw fashion the factual allegations with which plaintiff intends to support his claims.”); Armstead v. Town of Harrison, 579 F.Supp. 777, 781 n. 23 (S.D.N.Y.1984) (“Conley v. Gibson [355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80] ... does not relieve plaintiff of alleging the essential elements of a claim under § 1983, and the District Court is not obliged to rewrite a faulty complaint in order to save it from a motion to dismiss.”); Howard v. Koch, 575 F.Supp. 1299, 1303-04 (E.D.N.Y.1982) (“[T]o prevent the proliferation of vague and wholesale allegations, encouraging the redress of imagined wrongs, the Second Circuit has long endorsed a requirement of specificity in entertaining [§ 1983] complaints.”).

The plaintiff failed to allege a single fact from which it could be inferred that he did not commit the vandalism as charged by the two private citizen complainants and that the police officers at the station somehow should have known this but arrested him anyway. The fact that the plaintiff denied throwing the paint and that he eventually was found not guilty does not mean that the police had no basis for believing the complaining witnesses. It is not reasonable to infer that two businessmen ordinarily would show up at a police station and subject themselves to criminal liability under Illinois law by making a false police report accusing someone of a crime they knew he did not commit. There is nothing in the complaint which suggests that the police should have drawn this unreasonable inference and disbelieved the witnesses when they reported the vandalism and identified the plaintiff as the culprit. The plaintiff himself says in his brief in opposition to the city’s motion to dismiss that after he voluntarily “presented himself” at the police station he was “identified ... as the person who had thrown paint on the building occupied by the defendant, Lincoln Towing Service,” and that “as a result of this identification” and the private citizens’ insistence that the detective “write up the Complaint,” he was arrested. Far from suggesting that the police had no reasonable basis for making the arrest, these judicial admissions lead to just the opposite conclusion. See, e.g., Gilmere v. City of Atlanta, 737 F.2d 894, 905 (11th Cir.1984) (officers had probable cause for arrest when crime victim observed suspect and said, “ ‘That’s him, he’s the one.’ ”); Mundy v. State of Georgia, 586 F.2d 507, 508 (5th Cir.1978) (witnesses’ identification of suspect from photographic array provided officer with “ample probable cause to swear out a warrant for his arrest”); Barnes v. Dorsey, 354 F.Supp. 179, 183 (E.D.Mo.), affd, 480 F.2d 1057 (8th Cir. 1973) (“From the allegations of the complaint itself it appears that the report of [the victim] gave the arresting police ample probable cause to arrest [the suspect].”). Furthermore, under the circumstances narrated in the amended complaint, the police did have a reasonable basis for concluding that the plaintiff had a motive to seek revenge against the towing company by committing the alleged vandalism. He was a disgruntled individual whose car had been towed away and who had been compelled to pay a towing fee to get it back. In contrast, as has already been mentioned, there is nothing whatever in the amended complaint from which it could be inferred that the police had a reasonable basis for thinking that the towing company’s employees had any motive to make up false charges against the plaintiff. By the plaintiff's own admission, the towing fee had already been paid. Thus the police obviously had no reason to suspect that false criminal accusations were being made in an effort to collect a civil debt.

The next point the plaintiff makes in arguing that dismissal was not warranted concerns my discussion of a due process claim under the fourteenth amendment. In attempting to parse the dense and convoluted language of the plaintiff’s amended complaint, which consisted almost entirely of “vacuous legal boilerplate,” EEOC v. Shell Oil Co., — U.S.-, 104 S.Ct. 1621, 1641, 80 L.Ed.2d 41 (1984) (O’Connor, J., concurring in part and dissenting in part), I deduced that he might have been trying to assert such a claim, independent of any fourth amendment claim, based on his detention in the lockup at the police station for a time following his arrest. It was by no means certain that the plaintiff had any intention of making such a claim, but I analyzed the amended complaint to see if his allegations would support one, and as I finally concluded, they did not. This may have been an unnecessary exercise. The plaintiff seemingly has now disavowed any separate due process claim, saying in his motion to reconsider that he invoked the fourteenth amendment only because that is the conduit through which the substantive guarantees of the Bill of Rights are made applicable to the states. But then, consistent with his thoroughly confused approach to this litigation, the plaintiff reverses his field again and proceeds to talk about a claim for deprivation of liberty under the due process clause of the fourteenth amendment, arguing that the doctrine enunciated in the Parratt decision is inapplicable in cases where there has been a deprivation of liberty rather than property. The Seventh Circuit said in the State Bank of St. Charles case, which I cited in my prior opinion, that there is nothing that indicates Parratt is so limited. And the plaintiff’s citation of Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), does not help him because Logan is distinguishable. See Hudson v. Palmer, — U.S.-, 104 S.Ct. 3194, 3203-04, 82 L.Ed.2d 393 (1984) (.Parratt extends to intentional conduct that is random and unauthorized; Logan has “no relevance” in such a case); Altman v. Hurst, 734 F.2d 1240, at 1242 & n. 6 (7th Cir.1984). See also Guenther v. Holmgreen, 738 F.2d 879 (7th Cir.1984), affg 573 F.Supp. 599 (W.D.Wis.1983); Gilmere, supra, at 905-10. In any event, the Parratt analysis on which the plaintiff has now focused was only an alternative basis for concluding that no separate due process claim had been buried somewhere in the tangled rhetoric of the amended complaint. The fundamental ground for rejecting the notion that such a claim had been pleaded was the same as that which precluded the finding of a fourth amendment claim or, for that matter, a claim under any other amendment: there were no factual allegations to support such a claim. It is telling that the plaintiff does not contest — indeed he completely ignores — this ground for decision.

Finally in this connection, and rather remarkably in view of the abundance of contrary authority, the plaintiff persists in arguing that he stated a valid conspiracy claim under section 1985(3). He makes this argument even in light of the Scott decision, which I discussed in my prior opinion. This assertion is based on an inaccurate reading of Scott or a refusal to believe that the Supreme Court really meant what it said in the case. There is simply no reason to think after that case that a plaintiff may bring a claim under section 1985(3) based oh a towing company’s economic animus against people who patronize certain parking lots. Indeed, as the plaintiff would have learned had he done even a modicum of proper research before filing his amended complaint, there has been no good reason to think such a claim woul. succeed in this circuit since at least 1976, when the Seventh Circuit decided in Askew v. Bloemker, 548 F.2d 673 (7th Cir.1976), that a claim under section 1985(3) could not be based on an allegation of animus towards a “class” of persons whose only common characteristic was their status as victims of the defendant’s wrongdoing. See Grimes v. Smith, 585 F.Supp. 1084, 1089 (N.D.Ind. 1984) (Posner, Circuit Judge, sitting by designation) (“[F]ar from having ever taken an expansive view of section 1985(3), the Seventh Circuit ... was a pioneer in the process of contraction that has culminated in the Supreme Court’s decision in Scott.”). See also Miller v. Indiana Hospital, 562 F.Supp. 1259, 1283 (W.D.Pa.1983) (no § 1985(3) claim where alleged class animus “is not based upon ‘immutable characteristics’ for which the members of the class have no responsibility”).

Notably, for purposes of the question of sanctions, the plaintiff has made absolutely no effort to argue in support of, or attempt to justify the pleading of, the numerous other federal claims that were dismissed. As for the plaintiff’s objection that defendant Pagano did not individually move to dismiss the complaint as to him, I find this objection to be without merit. The other defendants’ motions to dismiss clearly called the entire complaint into question. The plaintiff must have thought so too; he filed a memorandum in which he purported to oppose the motions to dismiss of “Detective[s] Pagano and McGarry.”

I will not reconsider my decision to dismiss the amended complaint. Nor will I grant the plaintiff’s request for carte blanche to draw up yet another complaint. He has already filed one amended complaint as a matter of right. That document demonstrated the plaintiff’s failure to comprehend basic principles of constitutional law and his inability to frame a complaint consisting of anything more substantial than a “bouillabaisse” of legal conclusions. U.S. General, Inc. v. City of Joliet, 598 F.2d 1050, 1051 (7th Cir.1979). He has not intimated how he intends to cure those deficiencies; nor has he offered a proposed amended complaint. In fact, the instant motion and memorandum strongly suggest that many if not all of the same defective claims would be resurrected were we to launch still another round of pleading. I do not think it would be an appropriate exercise of discretion to permit this, and I do not think the authorities in this circuit mandate it, particularly where the plaintiff is represented by counsel. See, e.g., Wakeen v. Hoffman House, Inc., 724 F.2d 1238, 1243-44 (7th Cir.1983); Jafree, supra, at 644-45. A plaintiff who has three lawyers working for him is not entitled to the same solicitude as one who is pro se, and in the former situation there are stricter limits on allowing a plaintiff to file complaint after complaint until he finally hits on something that will withstand a motion to dismiss. See, e.g., Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980) (pleadings filed by pro se prisoner litigants held to “ ‘less stringent standards than formal pleadings drafted by lawyers’ ”) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972)); U.S. General, supra, at 1053; Hernas v. City of Hickory Hills, 517 F.Supp. 592, 593 (N.D.Ill.1981); Crumpacker, supra, at 330 & n. 7; Sell, supra, at 321; Palmer v. Coons, 581 F.Supp. 1160, 1162 (D.Va.1984).

The second prong of the plaintiff’s motion for reconsideration concerns the sanction imposed under the amended version of rule 11. The plaintiff’s lawyers say such a sanction is not appropriate because they did extensive research before filing the amended complaint and thought they had adequate legal grounds for the multitude-of claims they made. They also point to the statement in the advisory committee’s notes which says the rule is not intended to chill an attorney’s enthusiasm or creativity. These arguments lack merit. In deciding to award a sanction in the amount of only one third of the defendants’ fees and costs rather than the full amount, which I believe could have been justified here, I allowed for the possibility that the plaintiff’s lawyers may have felt there was some viable legal argument to support ce oain of the claims they made. Based on my analysis of the complaint I was, if anything, quite lenient toward the plaintiff in this regard. For even if it were accepted that some of his claims could be justified under an argument that existing law should be extended, there are more than enough claims that could never be so justified to support the sanction I levied. Even under the most liberal view this complaint was heavily freighted with claims that had no plausible legal basis. The plaintiff has implicitly conceded this by his total failure to present in the instant motion any grounds whatever for reconsideration of the majority of his claims. Cf. Booker v. City of Atlanta, 586 F.Supp. 340 (N.D.Ga.1984) (sanction imposed under rule 11 when party made no effort to justify assertion of a position that was “unmistakably foreclosed” by existing law).

If the new rule is to mean anything, it must mean that this “shotgun approach” to pleading, Whiten v. Ryder Truck Lines, Inc., 520 F.Supp. 1174, 1176 (M.D.La.1981), where the pleader heedlessly throws a little bit of everything into his complaint in the hope that something will stick, is to be discouraged. And I do not believe that such pleading, which is completely merit-less on its face as a matter of law, can be left unsanctioned under the general rubric of giving lawyers room to be creative. That would gut the new rule and make it as manifestly ineffective as the former version of rule 11. The plaintiff's argument is tantamount to saying that lawyers must be free to plead now and think about the legal validity of their pleadings later, if ever. See Larson v. Wind, 548 F.Supp. 479, 480 (N.D.Ill.1982) (criticizing “counsel’s approach of ‘plead now and analyze later’ ”). That, however, is the very practice the new rule is intended to halt. See Huettig & Schromm v. Landscape Contractors Council, 582 F.Supp. 1519, 1522 (N.D.Cal. 1984) (“Rule 11 [as amended] is a response to a widely felt need to end abuse of the litigation process such as occurred here. ' If the Court were to tolerate this kind of conduct, the capacity of the judicial system to serve the ends of justice would soon become impaired.”). And since the standard is one of reasonableness — an objective standard — it is not relevant that an individual lawyer might think, on the basis of his own idiosyncratic view of the law, that it is acceptable for him to assert a claim that no rational pleader would put forward. The plaintiff’s lawyers, for example, still think they have a good argument to support a section 1985(3) claim based on economic or commercial animus after the Scott decision. But no matter how firmly they believe this, and no matter what their rationale, it is not a reasonable view under any objective standard because the Supreme Court unequivocally said just the opposite in Scott. See Wells v. Oppenheimer & Co., Inc., 101 F.R.D. 358, 359 & n. 3 (after stating that “the Rule might as well be repealed” if the standard were held to be one of subjective bad faith, the court explained that this was so because “there is no position — no matter how absurd — of which an advocate cannot convince himself”). See also Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, at 230-231 (7th Cir.1984) (Pell, J., concurring) (“No judge ... can be unaware of the growth of litigation not only in volume of cases per se but in cases of questionable merit. Our society has truly been termed a litigious one. Lawyers should be chilled from bringing cases to court which objectively any competent lawyer should know were meritless.”); Address by Chief Justice Warren Burger, American Law Institute Annual Meeting (May 15, 1984), quoted in 52 U.S.L.W. 2658 (May 29, 1984) (“When the elder statesmen among you here today came to the bar, I am sure you were told, as I was, that your signature on a pleading or motion was something like your signature on a check. There was supposed to be something to back it up ____ That tradition has become tattered ____ This is another area where a few well placed sanctions will have a salutory effect.”); Address by Senator Howell T. Heflin, member of the Senate Judiciary Committee, 44th Annual Judicial Conference of the District of Columbia Circuit (May 13, 1983), quoted in 100 F.R.D. 111, 205 (1983) (The amended version of rule 11 “provides that the attorney’s belief in the validity of the filing must have been formed after reasonable inquiry, and cannot simply represent loyalty to the client or wishful thinking.”).

As for the suggestion that I must give the plaintiff’s lawyers a hearing before imposing a sanction under rule 11,1 do not agree that a hearing is required under the circumstances of this case. A hearing would serve no meaningful purpose since I imposed the sanction based on my conclusion that a majority of the claims made in the amended complaint were unreasonable as a matter of law. It would be of no value to hold a hearing at which the plaintiff’s attorneys could explain to me why they felt it necessary to festoon their complaint with frivolous claims based on the first and seventh amendments, for instance. There is no possible justification under an objective standard for loading down a complaint with worthless claims such as these, which are totally unsupported by even a single allegation in the complaint. The advisory committee’s notes clearly contemplate that in some instances a district court will know enough about a particular pleading, without conducting a hearing, to decide that it violates rule 11. This may not be true in all cases of course, but it is true here. Due process does not demand a hearing to develop facts where the ruling is one of law and the facts adduced at the hearing would not alter the legal conclusion. The advisory committee’s notes expressly caution against getting bogged down in “satellite litigation” in administering the new rule. The decision in Textor v. Board of Regents, 711 F.2d 1387 (7th Cir.1983), which the plaintiff’s lawyers have cited in support of their assertion that they must be given a hearing, is not on point. In that case the assessment of a sanction rested on a finding that the lawyers had acted in bad faith. Here, the lawyers’ subjective intent is not material to the decision to impose a sanction.

One facet of the motion to reconsider does have merit. Rule 11 is aimed at lawyers who put their name on a pleading without first making a proper inquiry into the relevant law and facts. One of the plaintiff’s three lawyers filed an appearance but did not attach her name to the defective pleading. Thus she did not technically breach the rule’s signing requirement, and my order will be modified to relieve her from the obligation of paying the sanction.

All that remains is to set the amount of the sanction. After reviewing Mr. Knudson’s submission, I find the amount of $474.70, representing one third of the fees and costs incurred by his clients, is reasonable. With respect to Mr. Sheridan’s submission, I find that 14 hours is a reasonable amount of time, and I conclude that the appropriate rate is the same as that charged by Mr. Knudson. I will exclude the overtime pay received by the police officers for going to the corporation counsel’s office for conferences. One third of the remaining fees and costs is $383.73. Thus, the total sanction is $858.43.