author: TROUTMAN, Senior District Judge.

text:
    ALLEN ORGAN COMPANY v. ELKA S.p.A.
    Civ. A. No. 85-90.
    United States District Court, E.D. Pennsylvania.
    Aug. 1, 1985.
    Sanford J. Piltch, Macungie, Pa., and Joel S. Goldhammer, Philadelphia, Pa., for plaintiff.
    Lewis F. Gould, Philadelphia, Pa., for defendant.
   MEMORANDUM AND ORDER

TROUTMAN, Senior District Judge.

Defendant ELKA S.p.A., a corporation organized and doing business in Italy, has moved to dismiss plaintiff Allen Organ’s patent infringement action on two grounds. First, it contends that this Court cannot exercise personal jurisdiction over it in that ELKA has no place of business in, nor direct business contacts with, the Commonwealth of Pennsylvania. Secondly, ELKA asserts that service of process was defective in that the complaint was sent by the specially appointed process server via a private mail carrier when the Federal Rules of Civil Procedure require that process be dispatched by the Clerk of Court through the United States Postal Service.

Lack of In Personam Jurisdiction

Defendant relies heavily upon the recent case of Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290 (3d Cir.1985) to support its argument that personal jurisdiction is lacking. Daetwyler conclusively precludes a “national contacts” basis for jurisdiction and if plaintiffs action here were premised upon ELKA’s business contacts throughout the United States, defendant would be correct in its contention that this Court lacks in personam jurisdiction. That conclusion, however, does not end the analysis in this case, any more than it did in Daetwyler. There the Court of Appeals also considered the propriety of asserting personal jurisdiction under Pennsylvania’s long-arm statute, 42 Pa.Cons.Stat.Ann. § 5322 (Purdon’s 1981), but concluded that there were insufficient contacts to meet due process requirements. Moreover, the court determined that the district court had implicitly reached the same conclusion, thereby having to rely upon the now rejected national contacts theory to avoid dismissing the case.

For purposes of this case, then, our analysis is circumscribed but also mandated by Daetwyler: we must determine whether asserting jurisdiction over ELKA under Pennsylvania’s long-arm statute offends due process. It is settled that Pennsylvania intends its long-arm to reach to the limits of Constitutional due process. Daetwyler, 296, n. 8; Allen Organ Co. v. Kawai Musical Instruments Manufacturing Co., Ltd., 593 F.Supp. 107 (E.D.Pa. 1984). Thus, it is required that defendant’s conduct fall within one of the alternative terms of the statute and that defendant have sufficient contacts with the Commonwealth so that it could reasonably expect to be called upon to defend a lawsuit here.

Allen Organ contends that there are two possible bases for allowing it to bring defendant into court here, § 5322(a)(l)(iii), shipping merchandise directly or indirectly into or through Pennsylvania, and § 5322(a)(4), causing harm or tortious injury in the Commonwealth by an act or omission outside of it.

Defendant asserts that it has no direct relationship to any distributor that sells its musical instruments in Pennsylvania. However, ELKA does have a distributorship agreement with a California company, America, Inc. In addenda to that contract, Kimball Organ Company is specifically mentioned as a seller of ELKA organs. (Exhibit M to plaintiff’s Memorandum in Opposition to Defendant’s Motion to Dismiss). There are thirteen (13) Kim-ball/ELKA dealers in Pennsylvania. (Exhibit T to Plaintiff’s Surreply in Opposition to Defendant’s Motion to Dismiss). Pursuant to a term of the contract between ELKA and America, Inc., 50% of the ELKA organs purchased by America must be sold under the ELKA trademark. Organs sold under the Kimball name may be counted toward that 50% requirement if the ELKA name appears in letters at least one-third the size of those used for Kimball. (Exhibit M). Moreover, in a patent indemnification agreement with America, Inc., ELKA specifically bound itself to defend and indemnify Kimball in infringement actions brought in the United States. Thus, ELKA must certainly expect to be sued, pursuant to its contract, wherever personal jurisdiction may be obtained over Kimball.

The enumerated indicia of a relationship between Kimball and ELKA, as well as sales through many retail outlets in Pennsylvania, belie the assertion that ELKA’s contacts here are random or fortuitous. ELKA’s shipment of organs into the Commonwealth, through Kimball, satisfies both the terms of the long-arm statute and due process concerns.

In addition, there is a second and independent basis for asserting in personam jurisdiction over ELKA under paragraph (a)(4) of § 5322, concerning tortious injury. Since patent infringement is a tort and Allen Organ a Pennsylvania resident, ELKA may reasonably be expected to defend such an action here.

Defective Service

Defendant contends that service of the complaint was improper because it did not conform to the dictates of Fed.R.Civ.P. 4(i)(l)(D). This, however, is an alternative form of service. Under the circumstances existing in this case, subdivision (e) of Rule 4 provides that service may be made in the manner prescribed by the rules of the state in which the district court is held. Pennsylvania provides for service on a foreign corporation in Pa.R.Civ.P. 2180. Subdivision (c)(3) of that rule makes reference to 42 Pa.Cons.Stat.Ann. § 5323, which in turn authorizes service outside the Commonwealth “By any form of mail addressed to the person to be served and requiring a signed receipt”. § 5323(a)(3). Even if defendant were correct in its assertion that Federal Rule 4(i) contemplates only public mail, i.e., letters sent through the United States Postal Service and thence to the postal authorities in the foreign jurisdiction, it is apparent that the Pennsylvania rule is not so limited. The term “any form of mail” is broad enough to encompass the private mail service employed by plaintiff in this case. Notice to the defendant of the claims against it is the purpose of service and it is the signed receipt rather than the carrier that insures the fulfillment of that purpose. Although one of the alternative service rules must be followed to effect proper service, searching for the most restrictive one does not advance any legitimate interest of the courts nor of the defendant.

Having found neither of defendant’s bases for its motion to dismiss meritorious, the motion will be denied and defendant directed to answer plaintiff’s complaint.

      . "... ELKA has not directly nor through any agents sold electronic organs or any other products in Pennsylvania. The organs manufactured by ELKA in Italy are sold in Italy to a California company, unrelated to either ELKA or Kimball, which is responsible for their importation into the United States. The organs are sold again to Kimball and distributed to independent dealers throughout the United States. Delivery of any organs to dealers in Pennsylvania is under the total control and authority of Kimball.” (Defendant's Memorandum in Support of its Motion to Dismiss at 2, 3.)

      . Although this case does not present the issue of whether the Court could assert in personam jurisdiction over Kimball, and we certainly do not decide that question, it does appear likely from the limited facts available that Kimball could be required to defend an action in Pennsylvania arising from circumstances similar to those existing in this case.

      . Defendant makes two arguments with respect to service under this rule: (1) that it requires that the complaint be sent by the Clerk of Court and that sending it through the specially appointed process server did not constitute effective service; (2) that "mail" cannot be sent by private carrier.


source: Caselaw Access Project

author: MORAN, District Judge.

license: Public Domain

text:
    Terrell WALTERS, Joseph Ganci, and all others similarly situated, Plaintiffs, v. Governor James THOMPSON, Michael Lane, Daniel C. Bosse, J.W. Fairman, Henry E. Cowans, Marvin D. Shields, Donald Cartwright, James Thieret, James Chrans, Michael O’Leary, Jim Edgar, and Peter E. McElhinney, Defendants.
    No. 82 C 1920.
    United States District Court, N.D. Illinois, E.D.
    Aug. 8, 1985.

      Shelly Bannister, Margaret Byrne, Bannister & Byrne, Alan Mills, Uptown Peoples Law Center, James P. Chapman, James P. Chapman & Associates, Ltd., Chicago, Ill., for plaintiffs.
    Joseph F. Spitzzeri, Asst. Atty. Gen., State of Ill., Neil F. Hartigan, Atty. Gen., Chicago, Ill., for defendants.
   MEMORANDUM AND ORDER

MORAN, District Judge.

Plaintiffs Walters and Ganci are inmates in the segregation units of the Menard Correctional Center and the Joliet Correctional Center, respectively. They claim that defendants have denied them meaningful access to the courts. The focus of their complaint is two policies of the State Department of Corrections. First, plaintiffs allege that they have no physical access to their prison law libraries. Second, they also challenge the adequacy of the training, supervision and support given inmate clerks who provide plaintiffs with indirect access to the law libraries.

This case has had a somewhat curious history. It was originally brought pro se by Walters, raising five claims. Three were dismissed early in 1984, leaving two issues relating to legal research and legal papers pending. Thereafter Ganei joined as a plaintiff and they sought to represent a class restricted to the Joliet Correctional Center segregation unit. Walters was thereafter transferred to Menard, and counsel subsequently broadened the attack to include other segregation units in the state system.

The plaintiffs now seek to bring this action on behalf of a class of adult inmates housed in the segregation units of Illinois’ maximum security institutions, who allegedly are being denied meaningful access to the courts as a result of defendants’ policies. Plaintiffs seek injunctive relief on behalf of themselves and the class, and damages on behalf of themselves. Before the court are motions for class certification, for issuance of a preliminary injunction on the pleadings, and several subsidiary motions.

CERTIFICATION OF CLASS ACTION

The class certification decision is made without reference to the merits of the case. Plaintiffs bear the burden of establishing the suitability of a class action. Eggleston v. Chicago Journeymen Plumbers Local Union No. 130, 657 F.2d 890, 895 (7th Cir.1981), cert. denied 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982). There are four prerequisites to the maintenance of a class action under Rule 23 of the Federal Rules of Civil Procedure. First, the class must be so numerous that joinder is impractical. Second, there must be issues of fact or law common to all class members. Third, the claims or defenses of the representative parties must be typical of those of the class. Fourth, the plaintiffs must be a fair and adequate class representative. See generally Dos Santos v. Columbus-Cuneo-Cabrini Medical Center, 684 F.2d 1346, 1349 (7th Cir.1982).

A. Numerosity

The proposed class easily satisfies the numerosity requirement. While discovery is not complete, it is evident that hundreds of inmates are housed in segregation units at all times (pi. reply brief, exh. 7). Further, a substantial proportion of those inmates housed in segregation stay there for lengthy periods (id. exh. 8). Finally, it may be appropriate to include future inmates in class actions challenging prison conditions, see Ahrens v. Thomas, 570 F.2d 286, 288 (8th Cir.1978), further increasing the size of the class. Even if the size of the putative class is discounted by the percentage of inmates not involved in legal proceedings, the number of inmates in the class is still substantial. Moreover, it is improper to limit the class to only those inmates currently pursuing legal actions. Inmates who have a claim but are unable to formulate a complaint due to restrictions on their access to legal materials are as much denied meaningful access to the courts as inmates who are already involved in a lawsuit.

B. Common Questions of Law and Fact

The commonalty requirement is satisfied by a question of law or fact common to all class members. Faheem-El v. Klincar, 600 F.Supp. 1029, 1037 (N.D.Ill.1984). This case presents two interrelated and overriding common questions: first, whether preventing segregated inmates from having direct physical access to the law library denies them meaningful access to the courts and, second, whether the systematic reliance on inmate clerks to provide segregated inmates with indirect access to the law library is a constitutionally adequate substitute for direct access to the law library.

Plaintiffs’ case is very simple. It rests on the position that defendants have denied segregated inmates meaningful access to the courts by failing to provide either direct access to the law library or any of the alternatives to direct library access outlined in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Thus, defendants’ argument that the length of time an inmate spends in segregation may determine whether meaningful access has been denied is well taken but premature. At this point plaintiffs are arguing that for any period both the denial of direct library access and the reliance on ill-trained inmate clerks are constitutionally repugnant. If, after discovery, this position is shown to be too ambitious, this court has sufficient discretion to tailor the class.

Similarly, it appears that segregated inmates in some facilities such as State-ville and perhaps Menard may have some, albeit limited, access to the prison library. Plaintiffs, however, complain that even inmates in these institutions do not have open stack privileges but must rely upon a guard to bring books to them in a cage built in the library. They also complain that the administration of the library systems in these institutions is characterized by favoritism and inefficiency, severely curtailing library access for some inmates. Factual differences do not doom a class action where there is a common legal question faced by all class members. Here, the particulars of each segregated inmate’s access to legal resources falls into several easily discernible institutional patterns and these patterns in turn present common legal questions. If necessary, the scope of the class can later be limited. While the factual development of conditions at State-ville and Pontiac is sketchy, the defendants have made it evident that the systems have substantial similarities and are responsive to departmentwide policy.

C. Typicality

The typicality requirement is satisfied if the named representative’s claims have the same essential characteristics as the claims of the class at large. De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.1983). Plaintiffs claim they are being denied meaningful access to the courts by defendants’ refusal to provide them with direct access to the prison libraries and by defendants’ use of allegedly ill-trained, inadequately supervised, outnumbered, and dependent inmate law clerks. This legal theory is common to all members of the class and overrides any factual distinctions between the claims of the plaintiffs and those of the class members. Id.

D. Adequacy of Representation

The adequacy of the class representative “turns on the proposed representative’s interest in the outcome and the capability of his counsel.” Lewis v. Tully, 99 F.R.D. 632, 644 (N.D.Ill.1983). Plaintiffs have every likelihood of being confined in segregation until well after the conclusion of even the most protracted lawsuit. Their pursuit of this lawsuit will alone ensure that they share an interest with other inmates in segregation in seeking greater access to legal resources. Plaintiffs’ counsel are obviously capable.

E. Preclusive Effect of Other Cases

Defendants also argue that class certification is inappropriate here because plaintiffs’ claims have been or are being addressed in other litigation. In Hanrahan v. Lane, 80 C 2982 (N.D.Ill. 12/21/84), Judge Leighton ruled that inmates had not established that conditions at Joliet Correctional Center constituted cruel and unusual punishment. The Hanrahan decision, however, did not address the access to prison library issue. Wren v. Lane, No. 83 C 2382, pending before Judge Baker in the Central District of Illinois, attacks delays facing general population inmates who seek access to the prison library. This case, in contrast, involves inmates in segregation who have no right of direct access to the library and must rely exclusively upon inmate clerks.

Shango v. Jurich, No. 74 C 3598, pending before Judge Shadur, involves the Stateville institution and more closely covers the issues raised in this lawsuit. Though the precise claims raised by plaintiffs here have not been raised in Shango, one issue being litigated in that case is whether the operation of the prison library effectively denies segregated inmates meaningful access to the courts.

The similarity between Shango and this case is insufficient to bar class certification. First, defendants have not filed a motion for relatedness or consolidation. Second, Shango is directed at a single institution while plaintiffs’ complaint is directed against all Illinois maximum security prisons. In fact, Judge Shadur has refused to extend to Menard the terms of a consent decree that covered some of the access to court issues raised in Shango. Third, Walters and Ganci are not members of the Shango class and thus have no opportunity to litigate their somewhat different claims. See Madyun v. Thompson, 657 F.2d 868, 871-72 (7th Cir.1981). In sum, the res judicata effect of Wren and Shango, if any, is best determined after those courts have ruled on the merits.

F. Rule 23(b)(2) Class

A class may be certified under Rule 23(b)(2) of the Federal Rules of Civil Procedure if

the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive or corresponding declaratory relief with respect to the class as a whole.

This case easily falls within Rule 23(b)(2). It is a challenge to policies of denying segregated inmates direct access to the law library and of relying upon allegedly ill-trained and outnumbered inmate law clerks. The relief sought for the class is injunctive. While plaintiffs seek damages, this alone does not preclude class certification because the relief sought for the class is solely injunctive. Lewis v. Tully, 96 F.R.D. 370 (N.D.Ill.1982).

Accordingly, this court certifies a class of persons who are presently or will be in segregation in the maximum security facilities of the Illinois Department of Corrections.

PRELIMINARY INJUNCTION

A. Introduction

Plaintiffs seek issuance of a comprehensive preliminary injunction ordering defendants to

(a) ... keep the plaintiffs in an institution close to Chicago, prohibit their transfer away from this institution except by court order, provide them with telephone access to counsel, allow them to meet privately with attorneys and witnesses, and permit them access to the law library;
(b) ... refrain from transferring to another institution Richard Baker, the only trained inmate clerk working at the Joliet Correctional Center;
(c) ... establish a comprehensive training and continuing education program for all inmate clerks and to provide lawyers independent of the defendants to supervise the inmate clerks and to provide direct representation when necessary.

In order to obtain a preliminary injunction plaintiffs must establish (1) at least a reasonable likelihood of success on the merits; (2) no adequate remedy at law and the prospect of irreparable harm; (3) the threatened injury outweighs the threatened harm the preliminary injunction will cause the defendants; and (4) the granting of the preliminary injunction will not dis-serve the public interest. Godinez v. Lane, 733 F.2d 1250, 1257 (7th Cir.1984), but see Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 382-83 (7th Cir.1984) (outlining as many as six prerequisites). Plaintiff has the burden of proving each of these factors. Dos Santos v. Columbus-Cumeo-Cabrini Medical Center, 684 F.2d 1346, 1349 (7th Cir.1982).

B. Facts

Defendants have not contested the facts as alleged by the plaintiffs and supported by affidavits, although some of the matters are denied in an unverified answer. The record shows that when Ganci was placed in segregation at Joliet on April 21, 1983, he was attempting to defend himself in a criminal action and to mount a civil rights challenge to institutional conditions (Ganci 1. p. I). Despite repeated requests he has been denied direct access to the law library (id. at 2). Walters was transferred to the segregation unit of Joliet on March 18, 1982 (Walters I, p. 1). At that time he was defending himself in a criminal action and was pursuing two civil rights actions (id.). Despite repeated requests Walters was denied physical access to the library (id. pp. 2-3). Since June 4, 1984 Walters has been housed at Menard and has been denied significant access to its law library, despite repeated requests (id. at 5, see also Walters III and IV).

At Joliet, plaintiffs, like the inmates in segregation, relied upon a system of inmate library clerks for their “access” to the law library (Ganci I, p. 2; Walters I, pp. 4-5). Affiant Baker is one of these clerks. He testified that the Joliet library is staffed by two full-time and one part-time employees of the Bur Oaks Regional Library System (Baker, p. 1). These civilian employees have a wide variety of duties, have no regular or structured access to lawyers, and apparently play no direct role in assisting actual or potential inmate litigants (id. pp. 1-2). The Joliet law library is also staffed by two inmate clerks and two inmate trainees (id. p. 2). Baker, who like the other clerks has only a high school education, is the only clerk who received any training for the job (id.). He attended a 15-session training program which covered the rudiments of the law and legal research but failed to cover some essentials, including, rather incredibly, habeas corpus (id.). The other clerks learn primarily from on-the-job experience (id.). There is no continuing education program for clerks (id. p. 4). The clerks, like the civilian library employees, have no regular or structured access to lawyers (id., see also Clements).

During the ten hours the Joliet library is open daily the' clerks interview inmates who have legal questions or problems (Baker, p. 2). Because 90 per cent of the inmates are not able to do their own research or writing, the clerks must research the applicable law and draft the appropriate documents (id.). The clerks also photocopy cases, type legal documents, and perform similar clerical tasks (id.).

Joliet has over 1200 inmates and the staff of inmate clerks is insufficient in numbers and training to meet their legal needs (Baker, pp. 2-4). The clerks must assist inmates on three types of cases. First, many inmates have criminal cases pending and must have access to a library on a priority basis to meet court-imposed deadlines (Baker, p. 2). Second, many inmates who bring civil actions pro se need assistance (id. pp. 2-3). Third, inmates who institute internal grievances or must defend themselves against internal disciplinary charges often need access to legal materials (id. p. 3).

Until mid-1981 Joliet inmates in segregation had physical access to a law library (Baker, p. 3). Specially designed facilities which are still in place gave segregated inmates access to case reporters, statutes, and other legal materials while still isolating them from contact with regular inmates (id). Since then prisoners in segregation units have been denied access to the library (id.). Instead, the inmate clerks visit the segregation unit up to three times weekly, but frequently less often (id.). Under the supervision of one of the civilian employees the clerks interview the inmates, take their requests for legal materials, review documents drafted for them and offer advice (id.). The clerks then return to the library to do the requested research or drafting and must wait to meet with the inmate until the next “round” (id.).

The clerks are prohibited from bringing legal materials to the segregated inmates from the library (Baker, p. 3). Rather, the clerks must photocopy the legal materials requested by the inmates (id.). Inmates, however, are limited to 300 free copies a year (Walters I, p. 3). Plaintiffs testified that this limit forces them to curtail their requests for copies of legal materials, thus impeding their own legal research and forcing increased reliance upon the inmate clerks (id.).

The most recent uncontradicted affidavits offered by the plaintiffs indicate that defendants have put the integrity and effectiveness of this rudimentary legal assistance system under severe stress. First, following the November 1984 food strike two inmate law clerks were placed in segregation for fourteen days (Strong, Clements). They were accused of having given inmates advice on how to draft grievances concerning the food quality (id.). Second, soon after the food strike two inmate clerks were transferred to another institution (Strong, p. 2) and since the food strike there has been a high turnover of clerks within Joliet (Clements, pp. 2-3: Ganci III, p. 2). The frequency and quality of service provided by inmate clerks has dropped accordingly (id.). Third, beginning on November 1, 1984 the Department of Corrections replaced the regional library systems as the employer and supervisor of the inmate law clerks. The immediate effect of this switch was a reduction in the wages and hours of inmate clerks, further limiting services (Exh. S). Moreover, as a result of the change inmates are increasingly unwilling to confide in inmate clerks for fear that the Department of Corrections will pressure the clerks to disclose the information (Strong). The Department has also pressured the clerks not to help inmates pursue grievances in suits against the Department (id.).

Inmates in segregation have no access within the institution to attorneys, law students or trained paralegals (Walters I, p. 3). Plaintiffs are not able to use the phone to call or to receive calls from their attorney because both have C-grade status (id. p. 4). C-grade inmates do not have commissary privileges (Plf. exh. 1). Walters complains that as a result he is issued only three sheets of paper per week and that this amount is insufficient to pursue his litigation efforts (Walters I, p. 6).

On June 4, 1984, Walters was transferred to Menard, allegedly in retaliation for his persistence in seeking access to the law library and for pursuing this action (Walters I, p. 5). Apparently inmates in segregation at Menard are permitted direct access to the law library (id. pp. 5-6). Walters, however, has been allowed fewer than six visits to the library, even after making numerous written requests (Walters IV, pp. 1-2). Allegedly, favoritism determines which segregated inmates are permitted access to the library (Walters I, pp. 5-6). Menard inmates in segregation apparently have no access within the institution to attorneys, paralegals or law students. There is also no group of inmate clerks to assist segregated inmates (id. p. 6). Consequently, Walters has had no regular direct or indirect access to Menard’s legal resources for a year.

Walters alleges that as a result of defendants’ practices his civil rights complaints were dismissed and he has been unable to present a meaningful defense to an assortment of disciplinary charges (Walters I, pp. 3-4). He further alleges that he has been unable to file a timely petition for certiorari with the United States Supreme Court, adequately defend himself against a new criminal charge, or challenge his two-week confinement in a strip cell (Walters IV, pp. 2-3, Ans. to Interrog. # 3). Ganci alleges that he has been unable to bring a post-conviction action or a civil rights action challenging the conditions of his confinement because of his severely attenuated access to legal resources (Ganci I, p. 3). As a result of a post-conviction action Ganci’s co-defendant was released from prison because of trial errors (Ganci III, p. 3).

C. Reasonable Likelihood of Success on the Merits

“It is now established beyond doubt that prisoners have a constitutional right of access to the courts.” Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977). The Bounds Court held that this “fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Id. at 828, 97 S.Ct. at 1498. Bounds recognized that there are many alternatives to a law library that will still ensure meaningful access to the courts:

Among the alternatives are the training of inmates as paralegal assistants to work under lawyers’ supervision, the use of paraprofessionals and law students, either as volunteers or in formal clinical programs, the organization of volunteer attorneys through bar associations and other groups, the hiring of lawyers on a part-time consultant basis, and the use of full-time staff attorneys, working in either new prison legal assistance organizations or as part of public defender or legal services offices.

Id. at 831, 97 S.Ct. at 1499-1500.

The initial hurdle for plaintiffs is to show that they have been adversely affected in some way by defendants’ policy. Intuitively, there would - appear to be no need in access to court cases for plaintiffs to show actual prejudice. The rationale for a no-prejudice approach is that inmates may need to have access to legal resources in order to learn that they have a colorable claim as well as to frame a cause of action. A requirement that inmate plaintiffs be thwarted in their active pursuit of an existing lawsuit before they can bring an access-to-court claim assumes a degree of access to legal resources that may not exist.

As defendants point out, however, there is some indication by the Seventh Circuit that an inmate must claim to have been actually prejudiced by defendants’ policies. See e.g., Jones v. Franzen, 697 F.2d 801, 803 (7th Cir.1983); Bach v. Coughlin, 508 F.2d 303, 308 (7th Cir.1974); see also Isaac v. Jones, 529 F.Supp. 175, 179 (N.D.Ill. 1981). Plaintiffs here have met even the more stringent test. Both have alleged that their pursuit of legal remedies has been thwarted by their inability to gain meaningful access to sufficient legal resources. These allegations are sufficient.

Plaintiffs and most of the class members do not have direct physical access to a law library. In effect, this case thus tests the adequacy of the alternatives to direct library access provided by the defendants to meet their obligation of ensuring that segregated inmates have meaningful access to the courts. Due to the state’s failure to provide any evidence as to the nature and operation of these alternatives, this court must rely upon the description given by plaintiffs.

The evidence reveals that segregated inmates must rely exclusively upon inmate clerks who have little or no legal experience, formalized training, or supervision by attorneys. The clerks are supervised and paid by the Department of Corrections, which is responsible for imprisoning clerks and their inmate clients, is the target of much inmate legal action, and which has pressured the clerks to limit the number of actions against the Department. Inmates must request specific legal materials. They cannot use legal materials directly, but must obtain copies of the materials sought. Yet, inmates may only be able to obtain 300 pages of photocopied material per year. Access to the inmate clerks is occasional and legal research is accordingly extremely cumbersome. Telephonic access to outside counsel is limited or non-existent for segregated inmates. Even though the vast majority of inmates when unassisted are incapable of legal research or of drafting legal documents, they have no contact with any trained legal personnel.

This system does not survive constitutional scrutiny. Courts have repeatedly held unconstitutional systems featuring sole reliance on inmate clerks to obtain legal materials which must be specifically requested by inmates. See Williams v. Leeke, 584 F.2d 1336, 1338-39 (4th Cir. 1978), cert. denied 442 U.S. 911, 99 S.Ct. 2825, 61 L.Ed.2d 276 (1979); Toussaint v. McCarthy, 597 F.Supp. 1388, 1413 (N.D. Calif.1984); Johnson v. Galli, 596 F.Supp. 135, 138 (D.Nev.1984); Kendrick v. Bland, 586 F.Supp. 1536, 1551 (W.D.Ky.1984); Martino v. Carey, 563 F.Supp. 984, 1003-04 (D.Or.1983); Canterino v. Wilson, 562 F.Supp. 106, 110 (W.D.Ky.1983); Hooks v. Wainwright, 536 F.Supp. 1330, 1341-42 (M.D.Fla.1982).

Inmates often do not have the legal sophistication, much less the basic literacy skills, to conduct thorough legal research, even if they have access to a law library. In fact, some courts have held that even when a law library is adequate the state must provide additional assistance to inmates in order to ensure that their research efforts will not be thwarted by illiteracy or inexperience. See e.g., Cruz v. Hauck, 627 F.2d 710, 720-21 (5th Cir.1980); Cody v. Hillard, 599 F.Supp. 1025, 1060-1061 (D.S.D.1984); Canterino, supra, 562 F.Supp. at 110; Hooks v. Wainwright, 536 F.Supp. 1330, 1341 (M.D.Fla.1982); Glover v. Johnson, 478 F.Supp. 1075, 1096 (E.D. Mich.1979); Wade v. Kane, 448 F.Supp. 678, 684 (E.D.Pa.1978), aff’d without opinion, 591 F.2d 1338 (3d Cir.1979).

Plaintiffs here have no direct .access to a law library even though

[l]egal research often requires browsing through various materials in search of inspiration; tentative theories may have to be abandoned in the course of research in the face of unfamiliar adverse precedent. New theories may occur as a result of a chance discovery of an obscure or forgotten case. Certainly a prisoner, unversed in the law and the methods of legal research, will need more time or more assistance than the trained lawyer in exploring his case. It is unrealistic to expect a prisoner to know in advance exactly what materials he needs to consult.

Williams v. Leeke, 584 F.2d 1336, 1339 (4th Cir.1978), cf. Corgain v. Miller, 708 F.2d 1241, 1250 (7th Cir.1983) (describing “Catch 22” for inmates having to request specific materials). However undertaken, inmate legal research efforts are greatly hindered by their sole reliance on inmate clerks for legal advice and assistance, by the extremely cumbersome nature of the runner system, and by the limits on the amount of material they can obtain by photocopying from the law library.

Inmates in segregation are assisted to some extent by the inmate clerks. The Supreme Court has recognized the usefulness and importance of the legal assistance provided inmates by fellow inmates. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). The clerks serving plaintiffs and other segregated inmates, however, are not formally trained. There is no provision for continuing education programs. There is no evidence that inmate clerks have any access to attorneys. Because of the press of numbers and the restrictions inherent in the “runner” system, clerks have limited time to meet with inmates and to perform legal work on their behalf. While Bounds recognizes the constructive role that can be played by inmate clerks in providing meaningful access to the courts, the Court expressly stated that those inmate clerks should receive paralegal training and be under a lawyer’s supervision, 430 U.S. at 831, 97 S.Ct. at 1499. Subsequent decisions have not countenanced use of dependent, untrained and inadequately supervised individuals as the sole means of giving inmates access to the courts. See Harrington v. Holshouser, 741 F.2d 66, 69-70 (4th Cir.1984); Ramos v. Lamm, 639 F.2d 559, 584-85 (10th Cir. 1980), cert. denied 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Cruz v. Hauck, 627 F.2d 710, 720-21 (5th Cir.1980); Kendrick v. Bland, 586 F.Supp. 1536, 1552 (W.D.Ky.1984); Canterino v. Wilson, 562 F.Supp. 106, 110-112 (W.D.Ky.1983); Hooks v. Wainwright, 536 F.Supp. 1330, 1346-1352 (M.D.Fla.1982). Rather, when inmates have no access to a law library they must be provided with assistance by trained, skilled, and independent legal personnel. See e.g. Lovell v. Brennan, 566 F.Supp. 672, 696 (D.Me.1983); Canterino, supra.

The analysis of a meaningful access-to-court claim must proceed on a case-by-case basis and be rooted in the particular facts of each case. See Ramos v. Lamm, 639 F.2d 559, 583 (10th Cir.1980), cert. denied 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). This analysis is akin to the “totality of circumstances” approach to Eighth Amendment challenges to prison conditions. See Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Plaintiffs point to several practices that by themselves may not rise to a level of unconstitutionality, but which reinforce the unacceptable operation of the current system.

Plaintiffs are denied all telephonic contact with their attorneys. Given that plaintiffs are denied use of the telephone because of their violation of prison rules, lack of telephonic contact with their attorneys might not be unconstitutional if they had fuller access to the prison library or to trained legal personnel. Cf. Johnson by Johnson v. Brelje, 701 F.2d 1201, 1208 (7th Cir.1983). They, after all, can still communicate with their attorneys by mail. In this case, however, they claim that their access to legal materials is extremely attenuated and they have no contact with any trained legal personnel within their institutions. Consequently, the lack of any telephonic access to counsel weighs more heavily on the side of unconstitutionality. Cf. Brelje, supra; Johnson v. Galli, 596 F.Supp. 135, 138 (N.D.Nev.1984).

Similarly, the 300-page per-year limit on photocopying has a much more severe effect under the institutional circumstances. Inmates are undoubtedly not entitled to unlimited free photocopying as a matter of right. See e.g. Kendrick v. Bland, 586 F.Supp. 1536, 1553 (W.D.Ky. 1984) (citing cases); cf. Gibson v. McEvers, 631 F.2d 95, 98 (7th Cir.1980). In this case, however, the photocopying limit impinges directly on the plaintiffs’ ability to conduct legal research because the only means by which they can obtain legal materials is by photocopying. It would be extremely difficult for even a trained attorney to complete research on a case of any substance without perusing opinions, treatises and other materials totalling several hundred pages. The typical inmate in segregation, unschooled, forced to rely on untrained clerks, and denied any physical access to a library for browsing, cannot be expected to do better.

Plaintiff Walters alleges that his allottment of three pages of paper per week denies him meaningful access to the courts. Bounds found it “indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notarial services to authenticate them, and with stamps to mail them.” 430 U.S. at 824-25, 97 S.Ct. at 1496. Some courts have upheld stringent limits on the amount of paper given inmates. See e.g. Robbins v. South, 595 F.Supp. 785, 789-90 (D.Mont.1984). Walters’ claim, however, must be viewed in context. He must rely exclusively on paper to communicate with friends and family as well as to conduct this lawsuit. He has not even indirect access to the prison library. He has been denied telephonic contact with his attorneys or family. In these circumstances Walters has a reasonably good chance of establishing that the present limit on paper unduly restricts his ability to communicate with his attorneys and does not survive constitutional muster.

D. Irreparable Harm

As a result of their allegations and the uncontradicted evidence, the plaintiffs have established a substantial likelihood of irreparable harm. The inmate’s right of meaningful access to the courts is as fundamental as any other. Adams v. Carlson, 488 F.2d 619, 630 (7th Cir.1973). Inmates who are denied meaningful access to the courts are unable to protect or assert the whole panoply of rights to which even they are entitled. Plaintiffs have made a reasonable showing that the methods employed by defendants to give inmates access to legal resources are wholly inadequate as a matter of law.

A continuing violation of constitutional rights constitutes irreparable injury. See Wright & Miller, Federal Practice & Procedure § 2948 at 440; cf., Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976). Without prompt injunctive relief plaintiffs will be left with no adequate remedy at law. Damages cannot compensate a wrongfully-imprisoned inmate who is unable to prepare a post-conviction petition or the inmate whose meritorious civil rights petitions are denied because the pleadings were inartfully drawn by that inmate without full access to legal resources and relying on an- ill-trained fellow inmate.

The threat of irreparable harm is especially evident with respect to the two plaintiffs. They are mounting a wide-ranging and ambitious challenge to defendants’ policies and practices. Unconstitutional infringement on their access to the courts will prejudice their right to a full and fair hearing of their lawsuit. The rights of future inmates who challenge prison policies limiting access to the courts will also be prejudiced to the extent hindrance of plaintiffs' ability to mount a full challenge to present policies results in an adverse precedent.

E. Balance of Hardships

The balance of hardships favors the defendant on the class issues at this point. A preliminary injunction is designed primarily to preserve the status quo, pending a final hearing on the merits. Dos Santos v. Columbu's-Cuneo-Cabrini Medical Center, 684 F.2d 1346, 1350-51 (7th Cir.1982). Plaintiffs are not seeking to enjoin the defendants from acting. Rather, on the basis of the pleadings and a limited record, they seek injunctive relief compelling the defendants to make major statewide improvements in the system for providing segregated inmates with access to legal resources.

Three considerations tip the balance of hardships in favor of the defendants on the issue of classwide relief. First, district courts have been warned to exercise great care in ordering major institutional changes in state prison operations. See Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974). Second, the record is extremely limited at present. There is little or no information about several of the institutions that would fall within the scope of a statewide preliminary injunction. Third, while preliminary injunctions on the pleadings are hardly unprecedented, the usual course is to have a hearing before issuing such an injunction. Assuming that the more complete record mirrors the current one, the balance will tip back in plaintiffs’ favor. At that point the court will be able to fashion preliminary injunctive relief that is more closely tailored to the scope of the constitutional violation and the conditions at each institution.

The balance of hardship may tip the other way, however, with respect to the individual plaintiffs. The uncontradicted and substantial evidence was that they have little or no direct access to the prison libraries, no contact with any trained legal personnel within their institutions, and no telephonic contact with their attorneys, even though they are involved in a complicated piece of litigation. Walters is especially disadvantaged. His writing materials are extremely limited and he has been transferred to an institution over 300 miles from his attorneys. Granting preliminary relief to individual plaintiffs will not substantially disrupt the existing institutional scheme if, in fact, their access has remained as limited as once it was. This court is, however, well aware that increased access for plaintiffs was the subject of motions and several conferences, and we are uncertain of the present status of that matter. We therefore hesitate to proceed further without more current information.

F. Public Interest

The public is ill-served by both the systematic denial of basic constitutional rights to an inmate class and the institutional upheaval that may result from an overly broad and premature preliminary injunction. The public, however, clearly does not benefit from a poorly tried lawsuit or a denial of relief which should be granted. Courts are far more apt to err when a plaintiff is unable to develop fully his or her case. Error may stem from either the difficulties in comprehending plaintiffs’ case or from the court bending over backwards to compensate for the deficiencies in plaintiff’s case. Consequently, preliminary relief that enables plaintiffs to adequately prepare and pursue their cases serves the public interest.

G. Preliminary Injunctive Relief

The court is persuaded that defendants are not satisfying their responsibilities under Bounds and are denying plaintiffs and the members of the class they represent meaningful access to the courts. A preliminary injunction on the classwide claims, however, is premature at this point. The record simply is not complete enough for the court to determine with assurance that segregated prisoners in all maximum security institutions are being denied meaningful access to the courts. There is simply no significant information about several institutions. The underdeveloped record also prevents the court from framing preliminary relief tailored to both the extent of the constitutional violation and the specifics of each institution. Thus, plaintiffs’ motion for immediate establishment of a training and continuing education program for inmate clerks, and the provision of supervising lawyers independent of the institution, is denied without prejudice. The motion to restrain defendants from transferring Richard Baker, the only trained inmate clerk at the Joliet Correctional Center, is denied as moot. Baker was transferred from Joliet to another institution on July 26, 1984 (7/31/84, Archibald Aff.). Defendants are undoubtedly aware that if they transferred Baker in retaliation for his role in this lawsuit or for his activities as a sort of jailhouse lawyer they will be held liable. See e.g., Shango v. Jurich, 681 F.2d 1091 (7th Cir.1982); Buise v. Hudkins, 584 F.2d 223, 229 (7th Cir.1978), cert. denied 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979).

The interests of both the parties and the public are best protected by prompt limited discovery to determine the system in place at each institution and a timely hearing on the specifics of a preliminary injunction. The parties are directed to come to that hearing with detailed recommendations as to the appropriate injunctive relief. In preparing their recommendations the parties should examine carefully the options outlined in Bounds and its progeny. They should also frame their proposals with reference to the characteristics of the various institutions and their segregated inmates. By having the defendants prepare such recommendations the court ensures that the state’s expertise and experience in operating these institutions will be both respected and capitalized upon.

It is too early to weigh the merits of Walters’ claim that he was transferred to Menard, an institution 300 miles away from his counsel, in retaliation for his persistent attempts to gain access to the Joliet library and his maintenance of this lawsuit. A transfer taken in retaliation for the exercise of a constitutionally-protected right is actionable under 42 U.S.C. § 1983 even if the transfer, if taken for a different reason, would have been proper. Matzker v. Herr, 748 F.2d 1142, 1150 (7th Cir.1984).

Similarly, preliminarily enjoining defendants from transferring plaintiffs to institutions far away from Chicago in order to hinder plaintiffs’ litigation efforts is inappropriate. First, such an order would only be directing defendants to do what already they are bound to do: obey the Constitution. Second, without a transfer of Ganci there is no present controversy on this issue. If Ganci is transferred he can then make his case to this court that he is being punished for exercising his constitutional rights.

OTHER MOTIONS

Defendants have moved to dismiss Governor Thompson and Secretary of State Edgar on the grounds that they did not have the requisite personal involvement in formulating or implementing the challenged policies. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The complaint alleges that Governor Thompson is responsible generally for operating the state prisons, but makes no mention of any personal involvement by the Governor with any of the specific policies at issue in this case. While Edgar is the State Librarian, Ill.Rev.Stat. ch. 128, H 101, et seq., his role, if any, in the operation of prison libraries, appears by statute to be at most minimal and advisory. The complaint contains no allegation that Edgar had any personal involvement with the challenged policies. Plaintiffs have not opposed these motions and dismissal is appropriate.

Defendants have also moved to dismiss defendant Lane, the Director of the Illinois Department of Corrections. Dismissal on Monell grounds is premature. The complaint alleges that Lane is responsible for the policy restricting the access of segregated inmates to the prison law libraries.

In its January 11, 1984 Memorandum and Order this court dismissed several of Walters’ individual civil rights claims. Plaintiffs argue that this dismissal stemmed from Walters’ lack of access to legal resources. They seek to permit Walters to revive some of these claims in a separate action and thus move for voluntary dismissal of the claims without prejudice under Federal Rules of Civil Procedure 41(a)(2). In effect, plaintiffs seem to be asking for the voluntary dismissal of claims already dismissed. We see no reason to reach out to change (if change it is) the legal posture of aging grievances which plaintiffs, in the last year and a half, have not sought to vindicate. That motion is denied.

Finally, plaintiffs’ motion for a protective order covering survey forms completed by certain inmates is granted. Plaintiff conducted the survey in order to determine the length of time inmates typically spent in segregation and after defendants refused to produce information to that effect. Plaintiffs argue that release of all the surveys, some of which were attached to the motion for class certification, will inter alia expose inmates to retaliation and merely duplicate information already available to the defendants. Defendants indicate that they seek survey forms to oppose a (fully briefed) motion for class certification, even though they have not suggested that the information in the forms already released has been inaccurate. In light of this court’s treatment of the class certification issue in the instant opinion, the balance tips in plaintiffs’ favor.

Conclusion

Plaintiffs’ motion for class certification is granted and its motion for preliminary injunction on the pleadings is denied without prejudice. The motion for voluntary dismissal of the individual claims is denied. Defendants’ motions to dismiss Governor Thompson and Secretary of State Edgar from this action is granted. Plaintiffs’ motion for a protective order is granted.

      . Defendants have moved to strike exhibits 2 and 9 to plaintiffs’ reply brief in support of the motion for class certification. Because the court did not rely upon these two exhibits in deciding to certify the class, it need not consider the merits of the motion.

      . The citations are to the affidavits attached to plaintiffs’ reply brief in support of a preliminary injunction on the pleadings and their brief in support of their motion for an expedited ruling.

      . In his most recent affidavit Walters described the extremely limited research assistance given Menard inmates who use the library (Walters IV). Library visits average one hour (id. p. 2). Inmates are put in cages and do not have stack privileges (id.). While inmate library clerks will bring specifically requested materials to the cage inmates they provide no research assistance (id. see also 2/1/85 Archibald Aff.).

      . In July 1984 defendants began dismantling these facilities. The parties have agreed, however, that no further dismantling would take place until this court issued its ruling (Exh. N, Mot. for Expedited Ruling). In light of this court's opinion that status quo should be maintained until there has been a hearing on the scope of injunctive relief.

      . An inmate-clerk at Menard reports that he was harassed and retaliated against because of the legal assistance he had furnished other inmates (Tedder). Ultimately, Tedder was barred by the Librarian from continuing his law clerk job, even though the.Institutional Assignment Committee had unanimously voted to keep him in that position.

      . The adequacy of the prison libraries are of course relevant to determining the quality of the inmate clerk system and to the shaping of the remedy, if such is ordered.


author: MARY LOU ROBINSON, District Judge.

text:
    John WOOLEN, et al., Plaintiffs, v. SURTRAN TAXICABS, INC., et al., Defendants.
    Civ. A. Nos. 3-78-609, 3-78-745.
    United States District Court, N.D. Texas, Dallas Division.
    Aug. 8, 1985.

      Tom Thomas, Kolodey & Thomas, John Bryant, Robert Maris, Glast, Ungerman, Vickers, Miller & Allen, and John Bass, Dallas, Tex., for plaintiffs.
    Morris Harrell, Stan McMurry, John F. Boyle, Jr., Hutchison, Price, Boyle & Brooks, Dallas, Tex., Robert M. Tharp, Jr., Irving, Tex., Analeslie Muncy, Dallas, Tex., and Paul Isham, Fort Worth, Tex., for defendants.
   ORDER

MARY LOU ROBINSON, District Judge.

The factual allegations in these antitrust actions have already been reported twice and need not be repeated at length here. See Woolen v. Surtran Taxicabs, 461 F.Supp. 1025 (N.D.Tex.1978) (denying motions to dismiss); Woolen v. Surtran Taxicabs, 684 F.2d 324 (5th Cir.1982) (vacating order denying intervention). In a nutshell, the plaintiff taxicab drivers claim that the defendants have excluded them from the outbound taxicab market at the Dallas/Fort Worth Regional Airport since the airport’s opening in 1974, in violation of the Sherman Act.

Recent antitrust law developments, most notably passage of the Local Government Antitrust Act of 1984, Pub.L. No. 98-544, 98 Stat. 2750 (Oct. 24, 1984) (to be codified in 15 U.S.C. § 35), and the recent decisions in Town of Hallie v. City of Eau Claire, — U.S. —, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985); Southern Motor Carriers Rate Conference v. United States, — U.S. —, 105 S.Ct. 1721, 85 L.Ed.2d 36 (1985); and Independent Taxicab Drivers’ Employees v. Greater Houston Transportation Co., 760 F.2d 607 (5th Cir.1985), now require that three issues be addressed, including one previously decided in the original district court opinion in this case:

I. Should these consolidated actions be dismissed because the Defendants’ challenged activities are immune from scrutiny under the antitrust laws by virtue of the state action exemption?

II. Should the Plaintiffs’ claims under § 4 of the Clayton Act for damages, interest on damages, costs and attorney’s fees against the defendant cities be dismissed under § 3 of the Local Government Antitrust Act of 1984?

III. Should the Plaintiffs’ claims against the private taxi company defendants be dismissed as barred under the Noerr-Pennington doctrine?

For the reasons set forth below, the Court answers each question in the affirmative.

I. The State Action Exemption

A. The Municipal Defendants

In Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), the Supreme Court, relying on principles of federalism and state sovereignty, determined that the Sherman Act does not apply to the anticompetitive conduct of a state acting through its legislature. Id. at 350-51, 63 S.Ct. at 313. Thirty-five years later, the Court also held that municipalities are not beyond the reach of the antitrust laws by virtue of their status because they are not themselves sovereign. City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 412, 98 S.Ct. 1123, 1136, 55 L.Ed.2d 364 (1978). These actions were filed shortly after City of Lafayette was decided.

City of Lafayette did not completely prohibit municipalities from claiming the state action exemption. Instead, the plurality, opinion suggested that the state action doctrine “exempts only anticompetitive conduct engaged in as an act of government ... [by a political subdivision of the state] pursuant to state policy to displace competition with regulation or monopoly public service.” 435 U.S. at 413, 98 S.Ct. at 1137. The opinion went on to explain:

This does not mean, however, that a political subdivision necessarily must be able to point to a specific, detailed legislative authorization before it properly may assert a Parker defense ... [A]n adequate state mandate for anticompetitive activities ... exists when it is found “from the authority given a governmental entity to operate in a particular area, that the legislature contemplated that kind of action complained of.”

435 U.S. at 419, 98 S.Ct. at 1139 (citation omitted). Finally, “City of Lafayette suggested, without deciding the issue, that it would be sufficient to obtain Parker immunity for a municipality to show that it acted pursuant to a ‘clearly articulated and affirmatively expressed ... state policy’ that was ‘actively supervised’ by the State.” Town of Hattie, 105 S.Ct. at 1717, quoting City of Lafayette, 435 U.S. at 410, 98 S.Ct. at 1135.

Considerable debate ensued over what would constitute an adequate articulation and expression of state policy, and what would constitute active supervision. In Community Communications Co. v. City of Boulder, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982), the Court held that a home rule provision of the Colorado Constitution which allocated only the most general authority to municipalities to govern local affairs did not satisfy the clear articulation component of the state action test. The opinion also suggested that whether active supervision by the state of the anti-competitive conduct was required was an open question, despite the plurality opinion in City of Lafayette. 455 U.S. at 51-52, n. 14, 102 S.Ct. at 840-841, n. 14.

Noting that “[i]t is fair to say that our cases have not been entirely clear,” 105 S.Ct. at 1720, the Court resolved much of the debate in Town of Hattie. A unanimous Court reiterated that the state action exemption applies whenever the state legislature has “clearly articulated and affirmatively expressed” a state policy to displace competition in the regulated area. Id., 105 S.Ct. at 1719. The Court further held that “although compulsion affirmatively expressed may be the best evidence of state policy, it is by no means a prerequisite to a finding that a municipality acted pursuant to a clearly articulated state policy.” Id. Finally, the Court concluded that the “active state supervision requirement should not be imposed in cases in which the actor is a municipality.” Id.

The Fifth Circuit has applied Town of Hattie in a case which is virtually indistinguishable from the instant actions. In In dependent Taxicab Drivers’ Employees v. Greater Houston Transportation Co., 760 F.2d 607 (5th Cir.1985), the City of Houston had entered into a contract with the Greater Houston Transportation Corporation by which the City granted an exclusive concession over passenger service at Houston Intercontinental Airport. Two groups of taxicab owners and operators filed suit under the Sherman and Clayton Acts, seeking damages and injunctive relief from the City and its private contractor. The district court dismissed the complaint on defendants’ motion for summary judgment, holding that the City was immune from antitrust scrutiny under the state action exemption and that the private contractor was immune under the Noerr-Pennington doctrine. The Fifth Circuit affirmed.

The Court’s analysis focused on the relevant provision of the Texas Municipal Airport Act, which authorizes municipalities to establish and operate airports both within and without their boundaries. Article 46d-4 provides:

(a) In operating an airport ... such municipality may ... enter into contracts ... and other arrangement for a term not exceeding forty (40) years with any persons:
(2) conferring the privilege of supplying goods, commodities, things, services or facilities at such airport____
In each case the municipality may establish the terms and conditions and fix the charges, rentals or fees for the privileges or services____

Tex.Rev.Civ.Stat.Ann. art. 46d-4 (Vernon 1969). The Fifth Circuit said:

While the latter provision falls short of expressly mentioning the establishment of ground transportation services, the statute’s broad phrasing is a strong indication of the state’s desire to abdicate in favor of municipal prescience with regard to airport management.
This indication is all we require____ We think it ... clear that the City of Houston might deem it most efficient to confer the privilege of airport taxicab operation on a single company, and that such a decision is a logical or reasonable consequence of the state’s broad allocation of authority to the City to run its own airport.

760 F.2d at 610-11. The Fifth Circuit also disposed of the question concerning the impact of Article 46d-7(c)—a major stumbling block in the first district court opinion in this case, see 461 F.Supp. at 1031:

Similarly, it is of limited significance that the statute authorizing municipal airport management states that the municipality’s actions shall not be “inconsistent with, or contrary to, any Act of the Congress of the United States____” [Article 46d-7(c).] The relevant question is not whether the City has transgressed federal law, but whether the Sherman & Clayton Acts apply to the City at all.

760 F.2d at 612, n. 8.

Plaintiffs seek to distinguish Independent Taxicab on two grounds: (1) Houston Intercontinental is wholly owned and operated by the City of Houston, whereas the Dallas/Fort Worth Regional Airport is jointly owned and operated by the Cities of Dallas and Fort Worth, and (2) recent statutory amendments demonstrate that taxicab operations at jointly owned and operated airports were in a “regulatory void” until 1983.

The first argument is of no import. The Cities of Dallas and Fort Worth operate the airport through the Dallas/Fort Worth Regional Airport Board, a joint board created under § 14 of the Municipal Airport Act, Article 46d-14. That section provides, in relevant part:

(a) For the purposes of this Section, unless otherwise qualified, the term “public agency” includes municipality____
(b) Any two (2) or more public agencies may enter into agreements with each other for joint action pursuant to the provisions of this Act and any two or more municipalities are specially authorized to make such agreement or agreements as they may deem necessary for the joint ... operation of airports____ Concurrent action by ordinance, resolution or otherwise of the governing bodies of the participating public agencies shall constitute joint action____
(c) ... The joint board shall have power to plan, acquire, establish, develop, construct, enlarge, improve, maintain, equip, operate, regulate, protect and police any airport ... to be jointly acquired, controlled and operated, and such board may exercise on behalf of its constituent public agencies all the powers of each with respect to such airport____

The Regional Airport Board is designed as a mechanism for joint action. That the defendant cities in these actions operated through the Regional Airport Board on a jointly owned airport, instead of on their own on individually owned airports, does not affect their state action exemption. “[T]he state’s desire to abdicate in favor of municipal prescience with regard to airport management” is equally clear in both instances. The decision to grant an exclusive airport taxicab franchise—to utilize the “single-operator concept,” in the parlance of these actions—is a logical and reasonable consequence of the State’s broad allocation of authority to cities to jointly acquire, own and operate municipal airports.

Defendants’ second argument is based on legislation passed in 1983. The Obstruction to Air Navigation Control and Taxicab Licensing Act, 1983 Tex.Gen.Laws, ch. 626, at 4015, amended § 14 of the Municipal Airport Act to provide that:

(d) (6) Taxicab Licensing____[A] joint airport board ... shall have power to license taxicabs picking up passengers at or delivering passengers to the airport. (7) Regulations. Any resolutions, rules, regulations, or orders of the joint airport board dealing with subjects authorized by Subdivision (65) of this subsection become effective only upon approval of the governing bodies of the constituent public agencies.

Article 46d-14(d)(6)-(7) (Vernon Supp.1985). While this statute was not enacted until well after the bulk of the actions challenged in these suits, it is significant as an indication of state policy, particularly when read in conjunction with § 2 of the Municipal Airport Act Amendments of 1983, 1983 Tex.Gen.Laws, ch. 978, at 5322, which provides:

Any and all contracts, leases, or other arrangments for the use or occupancy of airport property executed by joint boards created under the Municipal Airports Act (Article 46d-l et seq., Vernon’s Texas Civil Statutes), and all provisions thereof, and executed prior to the effective date of this Act, are hereby validated and confirmed and the same are fully effective and represent the lawful agreements and undertakings of joint boards in accordance with the terms thereof.

From these enactments, Plaintiffs draw the conclusion that no governmental entity had any power to regulate taxicab service at the airport until September of 1983. The opposite is true.

The amendment to § 14 of the Municipal Airport Act was designed to clarify the role of joint airport boards in regulating taxicab service at joint airports because of uncertainties that might have arisen from concurrent legislation which clarified the role of the Railroad Commission in establishing licensing requirements under the Motor Bus Act, Article 911a. See 1983 Tex.Gen. Laws, ch. 263, at 1161. This clarifying legislation does not suggest that no power to regulate existed before its enactment. The validating statute suggests just the opposite.

The plaintiffs’ operations at the airport were limited because ground transportation service was provided by means of a single-operator concept. The Cities of Dallas and Fort Worth own the airport and, as noted above, operate it through the Dallas/Fort Worth Regional Airport Board. The Cities of Dallas and Fort Worth contracted with the Airport Board to provide ground transportation under the single-operator concept. To meet their obligations to the Board, the Cities of Dallas and Fort Worth formed an entity known as the D/FW Surtran System. The System then solicited bids for the provision of the taxicab component of the ground transportation services. Yellow Cab of Dallas and Fort Worth Cab & Baggage formed an entity known as Surtran Taxicab, Inc., which submitted the winning bid. The D/FW Surtran System then contracted with Surtran Taxicab, Inc., for the provision of taxicab service at the airport. The single-operator concept, then, originated in the first agreement between the Airport Board and the Cities of Dallas and Fort Worth. The 1983 validation statute confirms that, under state law, the single-operator concept was lawful.

For purposes of antitrust analysis, the validation statute itself, by validating and confirming the contracts in question, is an adequate indication of the state’s desire to allow joint airport boards to displace competition through anticompetitive measures in the area of taxicab services to municipal airports.

The Court concludes that Plaintiffs’ actions against the Cities of Dallas, Fort Worth, Grapevine and Irving should be dismissed because the challenged conduct is immune from scrutiny under the antitrust laws by virtue of the state action exemption.

B. The Private Defendants

In a companion case to Town of Hallie, the Supreme Court outlined the criteria a private party must satisfy to fall within the state action exemption. “First, the challenged restraint must be ‘one clearly articulated and affirmatively expressed as state policy.’ Second, the State must supervise actively any private anticompetitive conduct.” Southern Motor Carriers Rate Conference v. United States, — U.S. —, 105 S.Ct. 1721, 1727, 85 L.Ed.2d 36 (1985) (citations omitted). The Court explained the reason for extending the state action exemption to private parties:

The Parker decision was premised on the assumption that Congress, in enacting the Sherman Act, did not intend to compromise the States’ ability to regulate domestic commerce. If Parker immunity were limited to the actions of public officials, this assumed congressional purpose would be frustrated, for a State would be unable to implement programs that restrain competition among private parties. A plaintiff could frustrate any such programs merely by filing suit against the regulated private parties, rather than the state officials who implement the plan. We decline to reduce Parker’s holding to a formalism that would stand for little more than the proposition that Porter Brown sued the wrong parties.

Id., 105 S.Ct. at 1726-27. Instead, “[t]he success of an antitrust action should depend upon the nature of the activity challenged, rather than on the identity of the defendant.” Id. at 1728.

The private defendants have met the first prong of the test. As discussed above, the single-operator concept resulted from the state’s clearly articulated and affirmatively expressed “desire to abdicate in favor of municipal prescience with regard to airport management.” 760 F.2d at 610. Because the Cities of Dallas and Fort Worth determined that the single-operator concept would be used at the airport and solicited bids only on this basis, it is fair to say that the private defendants, who simply submitted a bid, were compelled to participate in the anticompetitive activity if they wanted to provide taxicab service at the airport. As the Court said in Southern Motor Carriers, “compulsion often is the best evidence that the State has a clearly articulated and affirmatively expressed policy to displace competition.” 105 S.Ct. at 1729.

The active supervision requirement—the second prong of the test—“prevents the state from frustrating the national policy in favor of competition by casting a ‘gauzy cloak of state involvement’ over what is essentially private anticompetitive conduct.” Id. at 1729, quoting California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 106, 100 S.Ct. 937, 943, 63 L.Ed.2d 233 (1980). “[T]he state supervision requirement is intended to control the potential for abuse created by authorizing private persons to make anticompetitive decisions and to insure that those decisions are consistent with the clearly articulated and affirmatively expressed state policy at stake.” Gold Cross Ambulance & Transfer v. City of Kansas City, 705 F.2d 1005, 1014 (8th Cir.1983), cert. denied, — U.S. —, 105 S.Ct. 1864, 85 L.Ed.2d 158 (1985).

Midcal involved a challenge to a California wholesale wine pricing system that the Court found resulted in a de facto resale price maintenance program. The Court held that the system was a clearly articulated state policy, but that it did not meet the active supervision requirement:

The State simply authorizes price setting and enforces the prices established by private parties. The State neither establishes prices nor reviews the reasonableness of the price schedules; nor does it regulate the terms of fair trade contracts. The State does not monitor market conditions or engage in any “pointed reexamination” of the program.

445 U.S. at 105-106, 100 S.Ct. at 943.

In the instant actions, there is no doubt that the Cities of Dallas and Fort Worth, and the Regional Airport Board, have actively supervised the private defendants’ conduct. The details of taxicab service at the airport are set forth comprehensively in the contracts between D/FW Surtran System and Surtran Taxicabs, Inc., attached to the complaints. Further, the successive contracts show a gradually changing approach to ground transportation at the airport. For example, the 1979 Contract allows Surtran Taxicabs to subcontract with other taxicab companies for provision of service at the airport.

The Court concludes that the Plaintiffs’ actions against the private defendants should be dismissed because the challenged conduct is immune from scrutiny under the antitrust laws by virtue of the state action exemption.

II. The Local Government Antitrust Act of 1984

The second question before the Court is whether the plaintiffs’ claims for damages, interest on damages, costs and attorney’s fees against the cities should, in the alternative, be dismissed under § 3 of the Local Government Antitrust Act of 1984, Pub.L. No. 98-544, 98 Stat. 2750 (Oct. 24, 1984) (to be codified in 15 U.S.C. § 35), which provides:

(a) No damages, interest on damages, costs or attorney’s fees may be recovered under section 4, 4A, or 4C of the Clayton Act (15 U.S.C. 15, 15a, or 15c) from any local government, or official or employee thereof acting in an official capacity.
(b) Subsection (a) shall not apply to cases commenced before the effective date of this Act unless the defendant establishes and the court determines, in light of all the circumstances, including the stage of litigation and the availability of alternative relief under the Clayton Act, that it would be inequitable not to apply this subsection to a pending case. In consideration of this section, existence of a jury verdict, district court judgment, or any stage of litigation subsequent thereto, shall be deemed to be prima facie evidence that subsection (a) shall not apply.

Section 3(b) of the Act “was a compromise between those Congressmen who thought that retroactive application was not in accord with Congress’ traditional approach to changing existing law and those who felt that denial of retroactive application would unjustly penalize those localities that were defendants in pending suits for treble damages.” Jefferson Disposal Co. v. Parish of Jefferson, 603 F.Supp. 1125, 1131 (E.D.La.1985).

There is no dispute that these cases were commenced before the effective date of the act and that the cities of Dallas, Fort Worth, Grapevine and Irving are local governments within the meaning of § 2(1)(A) of the Act, 15 U.S.C. § 34(1)(A). The question, then, is whether it would be inequitable not to apply § 3(a) retroactively on the facts of these cases.

The Joint Explanatory Statement of the Conference Committee, which accompanied the Conference Report on the Bill, discusses the application of the Act to pending cases:

The application to pending cases of the money damage protection afforded by § 3 will be based upon a case-by-case determination by the district court. The local government has the burden of proof to establish to the court’s satisfaction that it would be inequitable not to apply this Act to the pending case. The court is to consider all relevant circumstances. The statute mentions two of the factors that the court should consider—stage of litigation and the availability of alternative relief under the Clayton Act. Where a pending ease is in an early stage of litigation and where injunctive relief can remedy the problem, the defendant local government may be able more easily to sustain its burden. Where a case is in more advanced stages of litigation or where injunctive relief is unavailable or incomplete, the burden would become more difficult. If a case has progressed to or beyond a jury verdict or district court judgment, a local government defendant would need compelling equities on its side to justify the application' of this section to the pending case.

Conference Report of H.R. 6027, 98th Cong., 2d Sess., 130 Cong.Rec. H11,850-51 (daily ed. Oct. 10, 1984). “This Statement makes clear that as either of the two factors specifically mentioned in § 3(b) of the Act (stage of litigation and availability of alternative relief under the Clayton Act) moves towards weighing against retroactive application, the defendant’s burden to establish that denial of such application would be inequitable becomes more difficult.” Jefferson Disposal, 603 F.Supp. at 1132.

In addition to the two factors listed in the statute—the stage of the litigation and the availability of alternative relief under the Clayton Act—the legislative history indicates that the Court should expressly consider at least three other factors in deciding the equity question:

In making its determination as to whether a local government should be protected against damages in a currently pending case, however, the statement of managers specifically directs the court to consider all relevant circumstances, including the stage of litigation and the availability of alternative relief under the Clayton Act—that is, the injunction remedy. But public policy requires that the court’s inquiry in such instances must not be limited solely to antitrust considerations in cases brought against local governments. Among the other relevant factors, the court should properly consider:
First, whether the local government was acting within its normal legislative, regulatory, executive, administrative, or judicial authority;
[S]econd, the financial harm which a treble damage award could inflict on the municipality and its taxpayers; and
[T]hird, whether the municipal action was predicated on or in furtherance of Federal or State laws, policies or regulations.

130 Cong.Rec. H12,187 (daily ed. Oct. 11, 1984) (remarks of Rep. Fish). Accord, id. at H12,184 (remarks of Rep. Lungren). But see id. at S14,368 (remarks of Sen. Metzenbaum), reprinted in Miami International Realty Co. v. Town of Mt. Crested Butte, 607 F.Supp. 448, 452 n. 2 (D.Colo. 1985) (additional factors suggested on the House floor do not reflect Congressional intent). The Court will consider the statutory factors first, then those suggested by the legislative debates.

The Stage of Litigation. This litigation is now seven years old, but chronological age is deceptive in this instance. These suits were filed in May and June of 1978. The initial motions to dismiss were filed on November 29, 1978. Discovery then went forward on the class certification issues, and on the merits from February, 1979, forward. The class certification hearing was held in October 1979. The Court’s ruling on class certification was issued December 31, 1980. Both cases were essentially dormant during the period the Court had the class certification issues under advisement.

The December 31, 1980, Order also denied the motion to intervene in the Campisi (Woolen) suit, which had been filed by some of the Whorton plaintiffs. Those plaintiffs appealed in January 1981. The Fifth Circuit’s opinion was issued on August 30, 1982. The mandate was filed in the district court on September 27, 1982. No proceedings, other than those related to the appeal, took place during the pendency of the appeal.

After this case was remanded, the Campisi plaintiffs moved to modify the class certification order to certify a damages class and the Whorton plaintiffs moved to decertify the class. All parties filed statements concerning the future course this litigation should take. In the ensuing 2k years, though, no party has made any real effort to complete discovery and ready the case for trial on the merits.

The past 5½ years has not been devoted to preparation for trial on the merits. Completion of pretrial discovery would take at least another year. Because the status of these actions has not changed since the effective date of the Act, the Court need not determine whether the appropriate date for assessing the stage of the litigation is the date of this Opinion or the date the Act took effect, September 24, 1984—30 days before its date of enactment under § 6 of the Act. See Jefferson Disposal, 603 F.Supp. at 1132 n. 16.

The failure to complete pretrial discovery before the effective date of the Act is a significant indication that § 3(a) should be applied retroactively. See 130 Cong.Rec. H12,186 (daily ed. Oct. 11, 1984) (remarks of Rep. Hyde) (the fact that pretrial discovery has not been completed “is an important distinction between the first and second sentences of section 3(b) for purposes of retroactive application”); id. at H12,187 (remarks of Rep. Rodino) (uncompleted pretrial discovery “is the essential difference made in the conference report between pending cases generally, and pending cases where a jury verdict or district court decision has been rendered.”) Congressman Hyde and Rodino were floor managers for the Act. Their statements during the course of debate are particularly useful in determining Congress’ intent. Miami International Realty, 607 F.Supp. at 452 n. 2. The failure to complete discovery before the effective date of the Act has particular weight where, as here, major discovery remains to be conducted.

The Availability of Alternative Relief Under the Clayton Act. “[I]n looking to the availability of alternative relief under the Clayton Act, the court would assess whether a plaintiff could recover damages from a private party and whether an injunction would be sufficient to halt continuing injury caused by an ongoing antitrust violation.” 130 Cong.Rec. S13,105 (daily ed. Oct. 4, 1984) (remarks of Sen. Cranston). Contra Miami International Realty, 607 F.Supp. at 454 (“the potential damage liability of other defendants should not enter into the calculus used in determining whether to apply § 3 to pending cases”).

Both criteria are met in these cases. Each case has three defendants which are not local governments—Surtran Taxicabs, Yellow Cab of Dallas, and Fort Worth Cab & Baggage Co.—and. which could be held liable for money damages, if not otherwise exempt from the antitrust laws.

Any continuing injury could be halted with injunctive relief prohibiting the cities from excluding the plaintiffs from the outbound taxicab market at the airport, or other appropriate prohibitions. “Injunctive remedies under § 16 [of the Clayton Act] may be as broad as necessary to ensure that ‘threatened loss or damage’ does not materialize or that prior violations do not recur.” International Telephone & Telegraph Corp. v. General Telephone & Electronics Corp., 518 F.2d 913, 925 (9th Cir.1975).

Exercise of Normal Regulatory Authority & Action in Furtherance of State Law. As discussed in Part I of this Opinion, the cities were plainly exercising their normal regulatory authority and acting in furtherance of state law in their implementation of taxicab service at the airport.

Financial Harm of a Treble Damages Award. The combined actions seek actual damages of $7,000,000, which would be trebled to $21,000,000. Such an award inevitably would have an adverse impact even on these major cities, but they would not be crippled in their provision of services or forced into bankruptcy. The burden would also be shared by the three nonmunicipal defendants. The magnitude of any adverse consequences falls far short of those suggested as benchmarks in the House:

[Wjhether an adverse impact would be felt by the unit of local government and its residents because of the antitrust damage award ... is important because certainly we do not want the antitrust laws of our country to result in insolvency with respect to our local governments, nor to intrude in such a way on local government that we do not have people coming forth to serve on local government out of fear of potential antitrust suits.

130 Cong.Ree. H12,184 (daily ed. Oct. 11, 1984) (remarks of Rep. Lungren). At the same time, “[i]t cannot be denied that a judgment of that magnitude would have an adverse impact on any community in this country and would be totally at odds with the spirit and intent of the Act.” Jefferson Disposal, 603 F.Supp. at 1135.

Conclusion. The Court determines, in light of all the circumstances, that it would be inequitable not be apply § 3(a) of the Local Government Antitrust Act of 1984, 15 U.S.C. § 35(a), to this case. Plaintiffs’ claims under § 4 of the Clayton Act, 15 U.S.C. § 15, for damages, interest on damages, costs, and attorney’s fees against the Cities of Dallas, Fort Worth, Grapevine and Irving are dismissed on this additional ground. This dismissal does not affect Plaintiffs’ claims for costs and attorney’s fees under § 16 of the Clayton Act, 15 U.S.C. § 26, as the Act does not encompass them. Jefferson Disposal, 603 F.Supp. at 1133 n. 19.

Under the express language of § 4(b) of the Act, the relief provided to private litigants is not available to the private defendants in these actions because they were commenced before the effective date of the Act.

III. Noerr-Pennington

The private defendants have moved for summary judgment on the ground that their activities are immune from antitrust scrutiny under the Noerr-Pennington doctrine. See Eastern Railroad President’s Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965).

“The Noerr-Pennington doctrine provides an exception to antitrust liability enabling citizens or business entities to influence or to petition public officials to take official action that will harm or eliminate competition.” Affiliated Capital Corp. v. City of Houston, 735 F.2d 1555, 1566 (5th Cir.1984) (en banc), petition for cert. filed, — U.S. —, 105 S.Ct. 1164, 84 L.Ed.2d 316 (1984). The Noerr-Pennington doctrine stems from the First Amendment’s guarantee of a right to assemble and petition the government. “Joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition. Such conduct is not illegal, either standing alone or as part of a broader scheme, itself violative of the Sherman Act.” Pennington, 381 U.S. at 670, 85 S.Ct. at 1593. As the Court later said:

[I]t would be destructive of rights of association and of petition to hold that groups with common interest may not, without violating the antitrust laws, use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interest vis-a-vis their competitors.

California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510-11, 92 S.Ct. 609, 611-12, 30 L.Ed.2d 642 (1972).

However, “a defendant cannot rely on Noerr-Pennington immunity when the activity to influence government action is a mere sham to hide what is essentially an attempt to interfere with a competitor’s business.” Affiliated Capital, 735 F.2d at 1567. This sham exception may manifest itself in a variety of ways. See Coastal States Marketing v. Hunt, 694 F.2d 1358, 1371 n. 42 (5th Cir.1983); ABA Antitrust Section, Antitrust Law Developments 615-18 (2d ed. 1984). The plaintiffs in the instant actions have not suggested what variety of the sham exception they believe is applicable here.

Recognizing that “[a petitioning party] should enjoy petitioning immunity from the antitrust laws so long as a genuine desire for [governmental] relief is a significant motivating factor underlying [the petitioning activity],” the Fifth Circuit has said that the sham exception is initially established by a showing that the defendant’s petitioning activity was “substantially” motivated by impermissible anticompetitive factors. If this showing is made, the defendant must demonstrate to the satisfaction of the trier of fact that the defendant’s petitioning activity was “substantially” motivated by a hope of governmental relief. If the defendant discharges this burden, “[n]othing more is required to bring the case within the immunity.” Coastal States Marketing, 694 F.2d at 1372 & n. 45.

The summary judgment record in this case discloses no genuine issue as to any facts material to determination of the Noerr-Pennington question. The undisputed facts demonstrate that the private defendants are entitled to summary judgment by virtue of the Noerr-Pennington doctrine. The same comments made by the Fifth Circuit in Independent Taxicab apply here:

Viewing the record in the light most favorable to [plaintiffs], the most that can be said is that [the private defendants] secured from the [Regional Airport Board] an exclusive concession whose anticompetitive effects stem primarily from a valid municipal, and vicariously state, policy. It would be anomalous to hold on the one hand that government can contract with private entities to effectuate valid, albeit anticompetitive, policies, while holding on the other hand that private entities cannot petition government to participate in the public endeavor.

760 F.2d at 613.

This result is compelled if Noerr-Pennington protection is to have meaning in the context of agreements with the government. First Amendment petitioning privileges would indeed be hollow if upon achieving a petitioned-for end the petitioner were then subjected to antitrust liability for his success.

Greenwood Utilities Commission v. Mississippi Power Company, 751 F.2d 1484, 1505 (5th Cir.1985).

The single-operator concept, which is at the heart of Plaintiffs’ claims, apparently originated in an independent consultant’s report prepared for the Cities of Dallas and Fort Worth in 1964. Even if the private defendants actively lobbied for implementation of the single-operator concept and vigorously pressed their views concerning criteria the successful bidder would have to meet in such areas as minimum insurance coverage and fleet size, NoerrPennington would apply because these activities plainly were not a sham. Plaintiffs’ alleged injuries were caused by the governmental action which the private defendants genuinely attempted to secure and succeeded in securing. See In re Airport Car Rental Antitrust Litigation, 521 F.Supp. 568, 587-90 (N.D.Cal.1981), aff’d, 693 F.2d 84 (9th Cir.1982), cert. denied, 462 U.S. 1133, 103 S.Ct. 3114, 77 L.Ed.2d 1368 (1983).

Plaintiffs’ contention that the private defendants’ actions fall within the co-conspirator exception to the Noerr-Pennington doctrine is without merit. Viewing the summary judgment record in the light most favorable to plaintiffs, the most that has been shown is mere adoption by the cities of some of the private defendants’ proposals. The record shows that while some of the private defendants’ suggestions were adopted, the general concept and specific details of taxicab service at the airport were closely scrutinized and extensively debated by a variety of public and private entities. There is no evidence of a conspiracy. See Affiliated Capital Corp. v. City of Houston, 519 F.Supp. 991, 1016-23 (S.D. Tex.1981), adopted in relevant part, 735 F.2d at 1567 (applying co-conspirator exception where the evidence revealed “active participation and orchestration by public officials in an anticompetitive agreement”).

The Court concludes that the plaintiffs’ claims against the private defendants should also be dismissed as barred under the Noerr-Pennington doctrine.

IV. The Civil Rights Claim

In their First Amended Complaint, filed May 17,1985, the Whorton plaintiffs allege that the defendants’ conduct constituted “a discrimination against the rights of the Plaintiffs under the Civil Rights Act and the Constitution of the United States.” Id. ¶ 17, at 9. The Whorton plaintiffs have not further elaborated on this cause of action in any document filed with the Court, nor have they identified what statute they purport to sue under.

This alleged civil rights claim based on discrimination has no plausible foundation and is wholly insubstantial and frivolous. It is dismissed for want of subject matter jurisdiction. Rule 12(b)(1). See Williamson v. Tucker, 632 F.2d 579, 590-91 (5th Cir.1980) (discussion of applicable standards). In the alternative, the civil rights claim is dismissed for failure to state a claim upon which relief can be granted. Rule 12(b)(6).

V. Summary of Holdings

1. Plaintiffs’ antitrust claims are DISMISSED because the Defendants’ challenged activities are immune from scrutiny under the antitrust laws by virtue of the state action exemption.

2. Plaintiffs’ antitrust claims under § 4 of the Clayton Act for damages, interest on damages, costs and attorney’s fees against the Defendant cities are DISMISSED under § 3 of the Local Government Antitrust Act of 1984 because, in light of all the circumstances, it would be inequitable not to apply § 3(a) of the Act to this case.

3. Plaintiffs’ antitrust claims against the private Defendants are DISMISSED as barred under the Noerr-Pennington doctrine.

4. The Whorton Plaintiffs’ civil rights claim is DISMISSED for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.

5. This Order disposes of all pending claims in this litigation. Judgment will be entered accordingly.

It is so ORDERED.

      . After these actions were filed in 1978, all defendants moved to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, each asserting the state action exemption. These motions to dismiss were denied in the original district court opinion, 461 F.Supp. at 1031-33. On May 24, 1985, the Court issued an Order stating that it would reconsider these motions in light of subsequent authority. All parties submitted new briefs. On June 28, 1985, the private defendants—Surtran Taxicabs, Inc., Yellow Cab of Dallas, Inc., and Fort Worth Cab & Baggage Company, Inc. —moved for summary judgment under Rule 56, asserting the state action exemption and NoerrPennington immunity.
      The issues concerning the Local Government Antitrust Act of 1984 were raised by the Court in an Order issued December 6, 1984. In response to that Order, each party filed papers addressing the applicability of the Act’s provisions.

      . As an alternative ground for dismissal, this analysis proceeds as though the state action exemption did not apply, thus making the availability of alternative relief a reality.