author: KANE, District Judge.

text:
    Roberto LUERA, individually, Audrey Luera, individually, and children Louis Luera and Camilio Luera, through their best friends Roberto Luera and Audrey Luera, Eduardo M. Lucero, individually; Mary Lucero, individually; Eduardo D. Lucero, a minor through his next best friends Eduardo M. Lucero and Mary Lucero; Judy M. Montero, individually; Ricky B. Cisneros, individually; Robert E. Salas, individually; Mary R. Lucero, individually; Glen M. Lucero, individually; Charlotte Rodriguez, individually, Arturo J. Rodriguez, Anelita Rodriguez and Tularosa Rodriguez, individually; Arturo J. Rodriguez, friend Charlotte Rodriguez; Rudolph Gonzales, Jr., individually; Geraldine I. Gonzales, individually; Antonio Ulibarri, individually; Antonio Ulibarri, Jr., a minor through his next best friend Antonio Ulibarri; Rudolfo Gonzales, individually; Valerie Gonzales, a minor, through her next best friend, Rudolfo Gonzales; Sadie S. Suniga, individually; Reba L. Yepes, individually; Eddy Manuel Yepes, individually; Cristobal Lois Yepes, a minor, through his next best friends Reba L. Yepes and Eddy Manuel Yepes; Karen Musikka, individually; Shaska Star Musikka, a minor, through her next best friend, Karen Musikka; Tony Marquez, individually; Michael Miera, individually; Van S. Lucero, individually; Gail Lucero, individually; Rudolfo Lucero, Monsita Lucero and Teofilio Lucero, minors, through their next best friends, Van S. Lucero and Gail Lucero; Nita Gonzales, individually; Estanislado Alemana-Gonzales, a minor, through her next best friend Nita Gonzales; Bernard A. Alvarado, individually; Gina G. Alvarado, individually; Tudalesia Gonzales, a minor, through her next best friends Bernard A. Alvarado and Gina G. Alvarado; Frank Lucero, individually; Cheryl Lucero, individually; Dominica Lucero, Mariquita Lucero, and Francisco Lucero, minors, through their next best friends Frank Lucero and Cheryl Lucero; Elana Salas, individually, Chelin Salas, Camila Salas and Celestina Salas, through their next friend, Elena Salas, Plaintiffs, v. Officers James “Buster” SNYDER, Gordon Christopher, Cherter Brannon, David Bricker, Daniel Reed, Leslie L. Jenkins, Leslie C. Gebhardt and Richard Fisher, Thomas Coogan, Chief of Police of the City and County of Denver, and the City and County of Denver, Defendants.
    Civ. A. No. 81-K-1386.
    United States District Court, D. Colorado.
    Dec. 27, 1984.

      Wallace Prugh and Christopher A. Miranda, Gerash & Robinson, P.C., Denver, Colo., for plaintiffs.
    Eduardo Lucero, pro se.
    Theodore S. Halaby and Jonathan A. Cross, Denver, Colo., for defendants.
   ORDER ON POST TRIAL MOTIONS

KANE, District Judge.

Plaintiffs filed this action alleging that: 1) defendants violated their rights under 42 U.S.C. § 1985 by conspiring to use excessive force to disperse a community gathering in the City and County of Denver at Columbus Park, popularly known as La Raza Park; and, 2) that the plaintiffs were damaged by the defendants’ negligent planning for the opening of the park and by the defendants’ negligent response to, and dispersal of, the gathering.

After a three week trial, a jury found in favor of defendants Fisher, Snyder, and Coogan on the conspiracy claim. On the negligence claim, the jury found that the plaintiffs and defendants were equally negligent. Under Colorado’s comparative negligence statute, C.R.S. 13-21-111(1), the plaintiffs recover no damages.

The following motions are before me: 1) plaintiffs’ motion for judgment notwithstanding the verdict; 2) plaintiffs’ motion for a new trial which was filed and signed by the plaintiffs’ attorneys, Gerash and Robinson, P.C.; 3) plaintiffs’ “pro se” motion for a new trial; 4) a supplement to the “pro se” motion for a new trial, which alleges the discovery of new and material evidence; and, 5) a motion by plaintiffs to deny plaintiffs’ counsel a claimed attorneys’ lien.

I. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

Plaintiffs move for the entry of judgment in favor of the plaintiffs under eight years of age, notwithstanding the jury’s verdict against all of the plaintiffs. Plaintiffs, citing Roberts v. Fisher, 169 Colo. 288, 455 P.2d 871 (1969), contend that individuals under the age of eight cannot be found negligent, and therefore the jury’s verdict, that those plaintiffs under eight years of age were fifty percent negligent, cannot stand.

Plaintiffs did not move for a directed verdict on this issue at the close of the evidence. The plain meaning of Rule 50(b) of the Federal Rules of Civil Procedure is that a motion for judgment notwithstanding the verdict will not lie unless it was preceded by a motion for a directed verdict made at the close of all the evidence; see Wright & Miller, Federal Practice and Procedure: Civil § 2537 at 596 (1971). Because the plaintiffs’ attorneys did not move for a directed verdict on this issue, I deny the motion for entry of judgment notwithstanding the verdict.

II. PLAINTIFFS’ MOTION FOR A NEW TRIAL

This motion for a new trial, filed by plaintiffs’ attorneys, asserts that I made 22 errors. The motion contains one citation of authority. In contravention of Rule 408(A) of the Local Rules of Practice for this district, the motion fails to cite the section in the Federal Rules of Civil Procedure under which the movant requests relief. Despite these not insignificant shortcomings, I will address the 22 contentions: I have divided them into the following categories: A) evidentiary rulings; B) jury selection; C) jury instructions; and, D) directed verdicts and motions to amend.

A. Evidentiary Rulings

Plaintiffs contend that it was error not to allow Denver’s mayor, Federico Pena, to testify about the Park incident and about a letter he wrote to Wilma Martinez recommending that this lawsuit be filed. Mayor Pena was a state legislator at the time of the incident and when he wrote the letter.' This issue was ruled on in limine; my ruling, then and now, is that because the mayor has no personal knowledge of the incident, he was not competent to testify. Mayor Pena’s April 26, 1984 affidavit, at paragraph 3, states that he “... was not in Denver during the occurrence of such events,” and that “Any information [he] received concerning such events was either through constituents or other second hand sources.” The plaintiffs have not produced any evidence that belies my finding that Mayor Pena’s proposed testimony and his letter to Wilma Martinez are inadmissible. I conclude that both were properly excluded.

Plaintiffs also contend that I erred by not permitting Art Dill, Eldon Caldwell and Leslie Gebhardt to testify.

Gebhardt was dismissed as a defendant in the case on the first day of trial because the plaintiffs’ attorneys failed to serve him with process. Despite my ruling on the fourth day of trial that the plaintiffs could call Gebhardt to testify, they did not call him. Plaintiffs’ apparent tactical decision not to call Gebhardt cannot impute error to the court.

I refused to allow the plaintiffs to call Dill and Caldwell. Their proposed testimony of changes made in police department policies after the incident is not admissible . because of the public policy of encouraging subsequent remedial measures. See Rule 407 of the Federal Rules of Evidence. If plaintiffs were permitted to use such potentially damning evidence, remedial measures which are to the benefit of the public at large might be foregone by defendants afraid of the prejudicial effect such evidence would have in lawsuits.

Likewise, plaintiffs contend that I erred when, after permitting defense counsel to cross-examine Digrazia, an expert witness, concerning feasible changes in Denver’s policy of issuing summonses and citations to organizers of potentially volatile gatherings in a city park, I sustained objections to plaintiffs’ counsels’ attempt to examine him on re-direct concerning the actual implementation after the incident of any such changes within the Denver Police Department. Cross-examination regarding the feasibility of policy changes does not open the door, on redirect, to testimony concerning implementation of new policy. Digrazia did not contest the feasibility of instituting such policy changes. Therefore, evidence of actual implementation of policy changes is inadmissible as irrelevant and as evidence of a subsequent remedial measure prohibited by Federal Rule of Evidence 407.

Plaintiffs further contend that because I allowed the defendants to introduce station KUSA’s videotape of the incident, my refusal to admit station KCNC’s and station KMGH’s videotapes of the incident was error. Plaintiffs, however, neglected to include KCNC’s and KMGH’s videotapes in the pre-trial order whereas the defendants did include KUSA’s videotape. In fact, plaintiffs’ counsel were the first to list KUSA’s videotape as an exhibit. Federal Rule of Civil Procedure 16(e) states that the pre-trial order "... shall control the subsequent course of the action unless modified by a subsequent order,” and that the pre-trial order shall be modified only to prevent “manifest injustice.” Although I don’t doubt the plaintiffs’ case would have been stronger had it been more fully documented, their own failure to comply with the rules of civil procedure can hardly create “manifest injustice.” Counsel for defendants clearly had the right to rely on the pre-trial order. An eleventh hour effort to endorse such exhibits would have precluded adequate preparation by defendants in order to correct demonstrably inadequate preparation by plaintiffs. They would have needed time to study the videotape before trial. I conclude that the plaintiffs’ motion in limine to exclude the KUSA’s videotape was properly denied and that KCNC’s and KMGH’s videotapes were properly excluded. Parenthetically, each broadcast station had the right to notice and a hearing to seek protective orders concerning “take-outs” and the scope of subpoenae duces tecum.

B. Jury Selection

Plaintiffs contend that I ruled erroneously: 1) that attorney-conducted voir dire be limited to 20 minutes per side; that 2) prospective juror that Danalek could not be excluded for cause and; 3) that the impanelled jury would not be stricken despite plaintiffs’ allegation that the defendants used their "... peremtory [sic] challenges for the purposes of striking all minorities and/or Spanish [sic] surname jurors.”

1. The court’s discretion to control the length of attorney-conducted voir dire is not abused unless the parties are prevented from effectively exercising peremptory and cause challenges. Darbin v. Nourse, 664 F.2d 1109, 1112-13 (9th Cir. 1981). Plaintiffs’ counsel did not object at trial to the time limitation. It is well settled that the federal trial court does not have to allow attorneys to conduct any voir dire at all. Rule 47(a), Fed.R.Civ.P.; Per ry v. Allegheny Airlines, 489 F.2d 1349, 1352 (2d Cir.1974). In addition to 20 minutes per side of attorney conducted voir dire, I examined the jurors extensively.

2. The next contention is that Pat Danalek should have been excused from the jury for cause. However, unless the juror shows the actual existence of an opinion likely to raise the presumption of partiality, the juror need not be excused for cause. Reynolds v. United States, 98 U.S. 145, 157, 25 L.Ed. 244 (1878). The plaintiffs did not demonstrate that this juror showed any such opinion. The plaintiffs not having demonstrated, now or during voir dire, that this juror was partial, I conclude that my denial of the challenge for cause was proper.

3. As to the charge that the defendants used their peremptory challenges to exclude minority jurors, a recent decision by the Florida Supreme Court offers a test for measuring the alleged discriminatory use of peremptory challenges.

The initial presumption is that peremptories will be exercised in a nondiscriminatory manner. A party concerned about the other side’s use of peremptory challenges must make a timely objection and demonstrate on the record that the challenged persons are members of a distinct racial group and that there is a strong likelihood that they have been challenged solely because of their race. If a party accomplishes this, the trial court must decide if there is a substantial likelihood that the peremptory challenges are being exercised solely on the basis of race____

State v. Neil, 457 So.2d 481 (1984).

The plaintiffs’ attorneys made no such timely objection and have demonstrated only that two of the individuals peremptorily excused by defendants were Spanish surnamed. One of those so challenged was a lawyer. The plaintiffs have not demonstrated a strong likelihood that the two jurors were challenged solely because of their race; I will not pursue a vapid accusation that they were. To do so would require a speculative inquiry into the subjective motives of defense counsel. See King v. County of Nassau, 581 F.Supp. 493 (E.D.N.Y.1984). I find that the defendants did not use their peremptory challenges improperly.

C. Jury Instructions

Plaintiffs contend that an instruction should have been given to the jury that children under eight years of age cannot be found negligent for purposes of weighing comparative negligence. Plaintiffs’ attorneys, however, neglected to tender such an instruction at the appropriate time. Rule 51 Fed.R.Civ.P. states that “... No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict----” The plaintiffs, having made no such objection or tender may not now make this objection as a ground for a new trial. Obviously, I do not regard this matter as plain error. Plaintiffs’ strategy, if such it can be called, was to focus on defendants’ conduct. No evidence was presented or even offered by plaintiffs to show individual damage. There was no evidence of medical expenses or medical testimony of injury offered or presented.

Plaintiffs also contend that my refusal to provide the jury, during its deliberation's, with the ages of all the plaintiffs warrants a new trial. I do not agree. After hearing the arguments of counsel, I instructed the jury to rely upon its collective memory.

D. Directed Verdicts and Motions to Amend

Plaintiffs contend that directed verdicts were erroneously entered in defendants’ favor. Plaintiffs state that directed verdicts were entered in favor of the defendants: 1) on plaintiffs’ first claim for relief under 42 U.S.C. § 1983; 2) in favor of Denver on plaintiffs’ fourth claim for relief under 42 U.S.C. § 1985; and, 3) denying plaintiffs’ claim for punitive damages.

1. After viewing all the evidence presented in the light most favorable to plaintiffs, Thompson v. Kerr-McGee, 660 F.2d 1380, T389 (10th Cir.), cert denied, 455 U.S. 1019, 102 S.Ct. 1716, 72 L.Ed.2d 137 (1981), I concluded that the evidence did not raise a contested issue of fact regarding defendants’ liability under § 1983. Therefore, I entered a directed verdict in favor of defendants on that claim.

2. Regarding the plaintiffs’ contention that the entry of a directed verdict in favor of Denver on plaintiffs’ fourth claim for relief constituted error, in fact no such directed verdict was entered. Plaintiffs’ allegation as to this ruling is simply erroneous.

3. Likewise, a directed verdict was never entered in favor of defendants on plaintiffs’ claim for punitive damages. The claim for punitive damages was in the verdict forms presented to the jury.

III. PLAINTIFFS’ “PRO SE” MOTION FOR A NEW TRIAL

The plaintiffs’ second motion for a new trial purports to be pro se; it is not. It is signed on behalf of all the plaintiffs by one of the plaintiffs, Eduardo M. Lucero. Although Lucero received the Juris Doctor degree in 1977 from the University of Denver College of Law, he is not licensed to practice law in Colorado nor is he a member of the bar of this court. He is, however, employed in a quasi-legal position with the United States Department of Education as an Equal Employment Opportunity specialist. Accordingly, I will rule on the “pro se’’ motion fully aware it was drafted by an attorney.

A. Ineffective Assistance of Counsel

In support of his motion for a new trial, Lucero’s first contention is that the ineffective assistance of plaintiffs’ counsel impaired the presentation of the plaintiffs’ case to the jury. Lucero confuses this civil case with a Sixth Amendment based claim for the re-trial of a criminal case. Although the conviction óf a criminal defendant who has not had effective assistance of counsel is repugnant to the Constitution, the civil litigant has no such constitutional bedding. What Lucero seems to be arguing is that the jury’s verdict is too harsh a sanction on the plaintiffs; that but for the negligence of plaintiffs’ counsel, the jury would have returned a plaintiffs’ verdict. Lucero states that plaintiffs’ counsel filed a poorly drafted complaint, failed adequately to preserve and' catalog the evidence, failed to serve named defendants and failed to challenge the constitutionality of the city ordinances involved. Pro se Motion for New Trial, at ¶ 2.

A new trial is not warranted based on the attorneys’ poor handling of the case. The plaintiffs having “voluntarily chosen [these] attorney[s] as [their] representative in the action ... cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation in which each party is deemed bound by the acts of his lawyer agent and is considered to have ‘notice of all facts, notice of which can be charged to the attorney.’ ” Link v. Wabash, 370 U.S. 626, 634-35, 82 S.Ct. 1386, 1390-91, 8 L.Ed.2d 734 (1962) (Harlan, J.), citing Smith v. Ayer, 101 U.S. 320, 326, 25 L.Ed. 955 (1879).

The conscious acquiescence of a party to his counsels’ inaction is a factor weighing against affording relief to clients from the consequences of the inaction. Link v. Wabash, supra, at 634, 82 S.Ct. at 1390. Moreover, where as here a plaintiff is himself an attorney, efforts of the client to excuse himself from the consequences of the attorney’s nonfeasance are especially weak. Chira v. Lockheed Aircraft, 634 F.2d 664 (2d Cir.1980). In Chira the lawyer was, unlike Lucero, licensed to practice law. Lucero is employed, however, in a quasi-legal position in the field of civil rights with the D.O.E. and was present in court for almost all of the proceedings. I think it grossly unfair to visit the sins of the plaintiffs’ attorneys upon the defendants who in defense of a second trial would be forced to spend additional thousands of dollars and hours for yet another three week trial. If plaintiffs are so dissatisfied with the representation they received, it is more fitting and appropriate to examine the merits of their contentions in a suit against their counsel. Certainly their counsel deserve an opportunity to be heard. More to the point, opposing parties and opposing attorneys should not have to be the watchmen of their case and bear the risk of additional trials and expenses. Responsibility should flow from the act rather than attach itself to the chimerical and timeless notion of an ideal result. Succinctly stated, the defendants did their job, the plaintiffs didn’t. If, as the plaintiffs say, the fault lies with their own attorneys, then that is where they should look for relief.

B. Directed Verdict on the Third Claim for Relief

Plaintiffs, say that I should not have granted a directed verdict in favor of Denver on the third claim for relief. That claim alleged that defendant Denver, by decisions of its administrative officers and “through the implementation of formal and informal policies and customs of harassment, antagonism, suppression, and disruption of the Chicano community” caused injury to plaintiffs, in violation of 42 U.S.C. § 1983. Third Amended Complaint at ¶ 14. Plaintiffs, however, failed to present any evidence suggestive of a city policy to harass the Chicano community. The granting of a directed verdict as to this claim was inescapable. See White v. Talboys, 573 F.Supp. 49, 50 (D.Colo.1983).

C. Good Faith Defense

Plaintiffs’ third contention is that I committed plain error by instructing the jury that good faith is an affirmative defense to a § 1985 conspiracy claim. Conspiracy, they say, is itself a violation of § 1985. Because there was evidence both of an agreement to injure plaintiffs and an overt act causing injury, they argue that there can be no good faith defense because the result would be a good faith conspiracy.

In Pierson v. Ray, 386 U.S. 547, 555-57, 87 S.Ct. 1213, 1218-19, 18 L.Ed.2d 288, 296 (1967), the court stated that good faith and probable cause are defenses available to police officers under § 1983. Defendants were entitled to have the jury instructed on that defense. The jury was not required to find that the conspiracy’s purpose was to injure. On the contrary, the defendants’ evidence, apparently accepted by the jury, was that defendants planned and devised, in good faith, a scheme to enforce the law.

D. Inconsistent Verdicts

According to plaintiffs, the jury found on the negligence claim that defendant police officers did not act in good faith and this is inconsistent with the same jury’s finding that the police acted in good faith on the conspiracy claim. This argument fails because the jury made no such finding. Denver was the only defendant on the negligence claim. The jury was not instructed that good faith was a defense to the negligence claim.

INSTRUCTIONS ON CITY ORDINANCES

Plaintiffs object to all instructions referring to Denver city ordinances on grounds that plaintiffs did not, on the date of the incident, engage in any of the actions prohibited by these ordinances. The record of the case, however, contains evidence upon which a jury could properly base a finding that plaintiffs did violate the city ordinances and park rules which were contained in the jury instructions.

Plaintiffs are also barred by Rule 51, Fed.R.Civ.P. from alleging that these instructions were given erroneously. Rule 51 states that “... No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires, ... stating distinctly the matter to which he objects and the grounds of his objection...” Rule 51 is not satisfied by the general objection plaintiffs’ counsel made to the instructions on city ordinances. Plaintiffs’ counsel objected to the instructions as being unnecessary and cumulative. So general an objection does not meet Rule 51’s requirements.

MISCONDUCT OF DEFENDANTS’ COUNSEL

Plaintiffs allege that defense counsel engaged in the following misconduct during the trial: that defense counsel falsely quoted portions of a deposition, and; manipulated the jurors’ minds by the frequent showings of the film of the incident. Plaintiffs also note that I rebuked defense counsel for other acts of misconduct. The allegation that defense counsel misled the jury by quoting portions of a deposition falsely is unsubstantiated. The allegation that KUSA’s videotape was played so often as to manipulate the jurors’ minds is also without merit. In a motion in limine I ruled that KUSA’s videotape was relevant evidence and was not prejudicial to the plaintiffs’ case. My verbal rebukes of defense counsel are hardly grounds for a new trial. My role is to keep zealous advocates within certain clearly defined boundaries. The jury was instructed not to draw inferences against the side to whom an admonition was addressed during the trial. Jury Instruction Number 53. The contention that the admonitions constituted error is groundless.

IV. SUPPLEMENT TO “PRO SE” MOTION: NEWLY DISCOVERED EVIDENCE

Appearing to be correctly captioned “pro se, ” the plaintiff Eduardo M. Lucero claims in his own behalf that newly discovered evidence (of past internal affairs complaints against former Denver Police Officer James Snyder and a criminal charge recently filed against Snyder) corroborate the plaintiffs’ claims regarding Denver’s policies and customs of harassing the Spanish surnamed community. The plaintiff also claims that the City and County of Denver concealed evidence of Snyder’s behavior during the trial in order to limit its liability for damages.

This contention fails. No discovery request was ever made. Even if the reports of the Denver Police Department’s Staff Inspection Bureau had been requested, the SIB files of any investigation of Officer Snyder would first have to have been examined in camera. Under Martinelli v. District Court, 612 P.2d 1083 (1980), and Denver Policemen’s Protective Ass’n v. Lichtenstein, 660 F.2d 432 (10th Cir.1981), the party seeking discovery of SIB files faces the police department’s claims of irrelevance of the SIB files and the privileged nature of the communications contained in them. I was never asked nor did I ever examine SIB files in camera.

With regard to the criminal charges currently pending against Snyder, the alleged incident underlying those charges took place after the trial of this case and was, therefore, not discoverable evidence in this case, was not relevant to the issues of the case, and is not grounds for a new trial.

V. PLAINTIFFS’ PRO SE MOTION TO

DENY PLAINTIFFS’ COUNSEL AN ATTORNEY’S LIEN

The motion is self-explanatory. In addition, plaintiffs recovered nothing. There is nothing upon which to impose an attorney’s lien. The motion is granted.

IT IS ORDERED that:

1. Plaintiffs’ motion for judgment n.o.v. is denied;

2. Plaintiffs’ motion for a new trial filed by their attorneys is denied;

3. The plaintiffs “pro se” motion for a new trial, filed by plaintiff Eduardo Lucero, is denied; and

4. The pro se supplement to the latter motion for a new trial is denied.

5. Plaintiffs’ motion to deny plaintiffs’ counsel an attorney’s lien is granted.

      . I am perhaps overly sensitive to this particular challenge. The tradition of this court is to have the trial judge conduct the voir dire examination of jurors. I am quite comfortable with that tradition and believe it is demonstrable that most attorney-conducted voir dire needlessly wastes time, annoys jurors and creates confusion. It is frequently pointless and often pathetically maladroit.
      In the instant case, plaintiffs’ most experienced counsel made an impassioned plea for permission to conduct the voir dire. After inundating me with canned briefs and a seemingly endless profusion of reprints of articles by psychologists, all of which I read and all of which lacked any genuine qualities, I was impressed by one point: He suggested that attorney conducted voir dire examination would permit him to develop an intuitive sense of the jurors’ subconscious predilections in a case involving police and members of a minority group. I certainly couldn’t, but I was anxious to see him try. Accordingly, I abandoned our tradition and ordered that the voir dire would be conducted jointly; first by the court and then by counsel for a period not exceeding twenty minutes per side.
      I anxiously awaited the opportunity to observe this titan of the subconscious at work. On the day of trial, however, when the morning mists had been burnt from the battlefield and all was ready "to cry havoc and let slip the dogs of war,” the champion of voir dire was nowhere to be found. He left the field and its burdens to two younger associates, one of whom conducted a woeful examination of less than the allotted twenty minutes. At least one thing was accomplished: Like a prodigal son, I have returned to tradition and think it highly unlikely that I will ever apostatize again — at least in the conduct of voir dire examination.


source: Caselaw Access Project

author: SWEET, District Judge.

license: Public Domain

text:
    CALEB & CO. and Unit & Co., partnerships, on behalf of themselves and all others similarly situated, Plaintiffs, v. E.I. DuPONT de NEMOURS & COMPANY, First Jersey National Bank, and Conoco, Inc., Defendants.
    No. 84 Civ. 4075 (RWS).
    United States District Court, S.D. New York.
    Dec. 28, 1984.

      Breed, Abbott & Morgan, New York City, for plaintiffs; Thomas A. Shaw, Jr., Thomas W. Kelly, Noah Nunberg, New York City, of counsel.
    Cravath, Swaine & Moore, New York City, for defendant E.I. DuPont; Ronald S. Rolfe, Alan R. Glickman, New York City, of counsel.
    Olwine, Connelly, Chase, O’Donnell & Weyher, New York City, for defendant First Jersey; Job Taylor, III, William K. Dobbs, New York City, of counsel.
   OPINION

SWEET, District Judge.

This case arises out of a corporate merger that was, at the time of its occurrence in the summer of 1981, the largest corporate takeover in history. Caleb & Co. and Unit & Co., (“Caleb”), as representatives of a class of tendering shareholders, allege that defendants E.I. DuPont de Nemours and Co., (“DuPont”), First Jersey National Bank, (“First Jersey”), and Conoco, (“Conoco”), in structuring and carrying out the merger, violated section 14(e), Rule 14e-1(c), Section 10(b), and Rule 10(b)-5 of the Securities Exchange Act of 1934 by intentionally delaying payments due tendering shareholders and not revealing an intention to delay these payments. DuPont and First Jersey have brought this motion pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss for failure to state a claim. The motion is denied in part and granted in part, and the alleged period of delay is determined to commence from the date of termination of the tender, August 17, 1981, rather than the date of acceptance of the shares, August 5, 1981.

Alleged Facts

For the purposes of this motion, the material allegations as contained in Caleb’s complaint are taken as admitted. See Walker Process Equip. v. Food Mach. & Chem. Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965). In determining the legal sufficiency of the claims stated, the exhibits annexed to the complaint are considered as well. Fed.R.Civ.P. 10(c).

On July 15, 1981, DuPont issued its prospectus (Exhibit C of the complaint) to all Conoco shareholders, including Caleb, offering them a choice of $95 cash or 1.7 DuPont shares for every Conoco share tendered in accordance with the offer. Two weeks later, because DuPont’s tender offer was hotly contested by two other bidders, Joseph E. Seagram & Sons, Inc. and Mobil Oil Corporation, DuPont increased the number of shares it would accept for cash, and on August 4, DuPont increased its cash offer to $98.00 per share, prompting Mobil to increase its offer to $120.00 per share.

Midnight, Tuesday, August 4 was the termination of the withdrawal period for Conoco shareholders who had tendered to DuPont and was also the expiration of the waiting period applicable to DuPont’s tender offer under the Hart-Scott-Rodino Act. Consequently, August 5 was the first date upon which DuPont could accept shares tendered pursuant to its cash offer and bind itself contractually to . purchase tendered shares. The prospectus stated that the termination date of the tender offer was August 17, unless extended, and defined the method of acceptance of shares as follows:

Upon the terms and subject to the conditions of the Offer, the exchange of DuPont Shares or cash for Conoco Shares validly tendered and not withdrawn will be made as promptly as practicable after the latest of
(i) the tender of such Conoco Shares,
(ii) 12:00 Midnight, New York City Time, on August 4, 1981,
(iii) approval by the Du Pont stockholders of the proposal to amend the certificate of Incorporation of Du Pont to increase the authorized number of Du Pont Shares and to approve the issuance of Du Pont Shares in connection with the acquisition of Conoco, at a meeting called for August 17, 1981,
(iv) the expiration of the waiting period applicable to the Offer under the HSR Act in connection with the Purchaser’s acquisition of the Conoco Shares or
(v) with respect to any Conoco Shares not theretofore accepted for exchange, the expiration of any withdrawal period resulting from the commencement of a tender offer for Conoco Shares by another bidder.
Notwithstanding clause (iii) above, the Purchaser reserves the right (but shall not be obligated) to accept Conoco Shares in exchange for cash prior to Du Pont stockholder approval. If the Purchaser exercises such right and Du Pont stockholder approval is not obtained, Du Pont Shares will not be issued to tendering stockholders and thé Merger will not occur____ (emphasis added)

Pursuant to the underlined portion of the provision, DuPont announced in its August 6 supplement to the prospectus that: “[T]he purchaser has accepted for exchange for cash pursuant to the offer, all Conoco shares validly tendered with an election for cash prior to 12:00 midnight, New York City time on Monday, August 3, 1981 and not withdrawn.”

Caleb alleges, and DuPont concedes, that as of August 5, DuPont was therefore contractually committed to purchase for cash at least 38.7 million shares at $98.00 per share. Although DuPont had initially announced that only 37.3 million shares were tendered for cash prior to August 3, and that 1.4 million additional shares could therefore be tendered for cash, DuPont later conceded that as of August 3, in excess of 38.7 million shares had been tendered for cash, and no share tendered for cash to DuPont on or after August 4 would be accepted by DuPont.

On August 4, the day before DuPont formally accepted the shares tendered for cash, DuPont and First Jersey amended the July 15 Exchange Agent Agreement between them. According to Caleb the amendment was designed to delay payments due Conoco shareholders who had tendered for cash. The complaint states that each tendering shareholder was required, in the letter of transmittal, which was part of DuPont’s offer, to appoint First Jersey as: “the true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that the said Exchange Agent also acts as agent of the Purchaser) ... to deliver certificates for such [tendered] Conoco shares ... upon receipt by the Exchange Agent, as agent of the undersigned ... of cash at the price per share specified ...” According to the terms of the letter of transmittal, after First Jersey received cash for the tendered shares, it would issue its “check in payment ... payable to the ... undersigned.”

Caleb alleges that changes in the amended Exchange agreement were designed to permit delays in this initial plan for payment. Under the original Exchange Agent Agreement, First Jersey was required, upon receipt from DuPont of the funds, to proceed as follows:

“You shall thereupon, as promptly as possible after the delivery of such funds ... prepare and send to each tendering stockholder, consistent with the provisions of this Agreement and the Letter of Transmittal, a check for the amount of cash ... to which he is entitled as provided in the Offer.”

Both underlined phrases were eliminated from the August 4 Amendment. Instead of a “check” to be sent to tendering stockholders, the August 4 Amendment substituted a “draft, payable through you as Exchange Agent for the Purchaser” (these drafts are hereafter referred to as “payable-through drafts”). The earlier requirement, that First Jersey send its checks (now payable-through drafts) to the tendering stockholders “as promptly as possible,” was eliminated.

Caleb alleges that as a result of the substitution of payable-through drafts for checks, no cash was required to be delivered to First Jersey, as the tendering shareholders’ attorney-in-fact, prior to these instruments being sent to the tendering shareholders. Such cash payment to their attorney-in-fact would, under the Letter of Transmittal, have constituted cash payment to the tendering shareholders. Under the amendment, Caleb alleges, the cash delivery was delayed until after the payable-through draft had been mailed by First Jersey to the tendering shareholder, received and deposited into a bank account by the tendering shareholder, and returned, presented to, and accepted by First Jersey and DuPont. The delays inherent in payable-through drafts, as opposed to checks, Caleb alleges, resulted in intentional delays in payments due tendering shareholders.

The complaint alleges that DuPont, in furtherance of its plan not to pay tendering shareholders promptly, caused and permitted Unit & Co.’s payment of $921,984 for shares tendered before August 3 and accepted on August 5 to be delayed until after September 21 and Caleb’s payment of $1,005,774 to be delayed until on or after September 1. Further, the complaint alleges that in excess of $2.5 billion in payments due potential plaintiff class members was delayed beyond the “due date,” defined as five days following acceptance of the shares by DuPont. The complaint further alleges that DuPont accomplished its undisclosed plan to delay payment not only through the devices of the August 4 amendment, but also “by deliberately using and permitting the use by First Jersey of personnel, equipment, facilities, procedures, and outside computer services which were inadequate for and incapable of causing payment to be made either promptly or as promptly as practicable.”

Conclusions

In examining the complaint on this motion to dismiss for failure to state a claim, the governing rule is that:

[T]he office of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof ____ [A] complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.

Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980). Gitterman v. Vitoulis, 564 F.Supp. 46 (S.D.N.Y.1982).

A. Count One: Rule 14(e)-l(c)

Caleb alleges as a first count that DuPont breached its obligation under Rule 14e-l(c), 17 C.F.R. § 240.14e~l(c), promulgated pursuant to Section 14(e) of the Securities Exchange Act of 1934, by not paying “promptly.” Rule 14e-l(c) states: “As a means reasonably designed to prevent fraudulent, deceptive, or manipulative practices within the meaning of section 14(e) of the Act, no person who makes a tender offer shall:

(c) Fail to pay the consideration offered or return the securities deposited by or on behalf of security holders promptly after the termination or withdrawal of a tender offer.

Section 14(e) of the Act, codified at 15 U.S.C. § 78n(e) states:

It shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer or request or invitation for tenders, or any solicitation of security holders in opposition to or in favor of any such .offer, request or invitation. The commission shall, for the purposes of this subsection, by rules and regulations define, and prescribe means reasonably designed to prevent, such acts and practices as are fraudulent, deceptive, or manipulative, (emphasis provided).

DuPont asserts that in order to allege a cause of action under Rule 14e-l(c) it is necessary to assert that the violating party acted with scienter when it paid impromptly. Further, DuPont claims that 14e-l(c) applies only to the post-termination period — here supposedly subsequent to August 17 — not to the post-acceptance period— here subsequent to August 5. Caleb claims, on the other hand, that to plead a 14e-l(c) violation properly no allegation of scienter need be stated and that the obligation of prompt payment was triggered by acceptance of the shares, on August 5.

Scienter

DuPont argues that there is an equivalence between the requisites of actions under §§ 14(e) and 10(b) of the Securities Act, and that section 10(b) has “long been understood [to] strike solely at fraudulent misrepresentation,” meaning “intentional conduct, that is, conduct undertaken with scienter.” It is true that in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976) the Supreme Court established that Rule 10b-5 did not proscribe negligence and in Sante Fe Industries v. Green, 430 U.S. 462, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977), the Court stated that the rule struck only at manipulative or deceptive practices. Further, it is true that actions brought directly under § 14(e) have been analyzed just as actions brought under § 10(b). See, e.g., Chris Craft Industries, Inc. v. Piper Aircraft Corp., 480 F.2d 341, 362-63 (2d Cir.1973); Atchley v. Qonaar Corp., 704 F.2d 355, 359 (7th Cir.1983); Pryor v. United States Steel Corp., [current] Fed.Sec.L.Rep. ¶ 91,568 (S.D.N.Y.1984).

However, the relationship between Rule 14e-l(c) and § 14(e) differs from that between Rule 10b-5 and § 10(b). Rule 10b-5 proscribes manipulative, deceptive, and fraudulent acts generally, just as does § 10(b). The courts, in defining these terms, have necessarily added clarity to these general proscriptions such that they have become virtual “terms of art.” Ernst & Ernst, supra, 425 U.S. at 199, 96 S.Ct. at 1384. However, section 14(e) gave the Commission authority, “by rules and regulations [to] define, and prescribe means reasonably designed to prevent, such acts and practices as are fraudulent, deceptive, or manipulative.” Within this authority, the Commission drafted the prohibitions defined by Rule 14e. Rather than rely on a rule which prohibits fraudulent activity generally, while leaving the courts to define the scope of that term as the Commission did with 10b-5, the Commission exercised its authority to create specific rules and regulations which are reasonably designed to prevent fraud. In doing so the Commission created an absolute prohibition that “no person who makes a tender offer shall” fail to pay promptly. While Rule 10b-5 strikes only at acts which are themselves fraudulent or deceptive, as defined by the courts, the rules issued pursuant to § 14(e) are reasonable exercises of administrative authority designed to prevent fraud in tender offers. Thus, 14e-l(a) prohibits any person from keeping a tender offer open for less than twenty business days, not because every tender offer kept open for less than twenty days would involve fraud, but because the Commission can reasonably exercise its duty to prevent fraud by forbidding that any tender offer be kept open for less than twenty days. Similarly, rule 14e-l(c)’s requirement that no person shall fail to pay promptly creates liability even where no scienter is alleged or proven, because the Commission, in a reasonable exercise of authority, believed that prohibiting all such imprompt payments would prevent fraud within the meaning of the Act. Cf. Gerstle v. Gamble-Skogmo, 478 F.2d 1281, 1300-01 (2d Cir.1973).

SEC Exchange Act Release No. 16384, [1979-80 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 82,373 at 82,597 demonstrates this reasoning. The Release states: “Rule 14e-1(c) has been revised to require a person making a tender offer to pay the consideration ... promptly ____ The commission believes that this provision will protect investors by ensuring that deposited securities are not tied up for an unreasonable length of time ... after the termination of a tender offer.” The Commission in drafting the requirement for prompt payment, eliminated the requirement of a finding of scienter and exercised its authority to structure tender offers such that fraudulent or deceptive actions would be eliminated.

The only prior case analyzing Rule 14e-1(e), cited by counsel, Pryor, supra, at 98,910 held that a claim had been properly pled where the plaintiff alleged merely a delay in payment, devoid of an allegation of scienter. While actions brought directly under the statutory section 14(e), which prohibits only fraud and manipulative practices generally, require a showing of scienter, see Pryor, supra, at 98,904, actions brought under rule 14e-l(c), which was drafted pursuant to the SEC’s authority to design reasonable means to prohibit fraud, need not allege or prove scienter.

The Trigger Date

Caleb asserts that the determination of whether payment was prompt should use August 5, the undisputed date from which DuPont was contractually bound to purchase the stocks, not August 17, the termination date of the offer, aS the initial point of analysis. Caleb admits that rule 14e-l(c) sets the termination oí the offer as the trigger for application of the prompt payment requirement and admits further that the prospectus defined the termination date as August 17. Caleb urges, nonetheless, that by accepting the shares tendered for cash on August 5, and thereby entering a binding contract to purchase on the 5th, DuPont also bound itself to pay promptly after the 5th.

Caleb cites with force the prospectus and the DuPont releases and urges that an undertaking to make a prompt payment after acceptance has been breached. But that is not the issue under the pleading as it is now constituted. Rule 14e-l(c) by its terms applies only to that period following termination of the offer. Securities Act Release 16384, supra, states that the 14e-1(c) standard also applies to issuer tender offers under rule 13e-4(f)5, and Rule 13e-4(a)5 defines termination as “the date after which securities may not be tendered.” The prospectus defined the termination date as the 17th.

The Commission, in the rules, moreover, has recognized the distinction between termination of the offer and acceptance of the shares for exchange. In rule 14d-7(a)(2), for instance, the Commission recognizes that prior to the commencement of the withdrawal period triggered by a competing tender offer, some shares may already have been accepted for payment. This “acceptance for payment” may well have occurred before the termination of the initial tender offer. The distinction between acceptance for payment and termination of the offer is thus recognized in the rules, and the Commission, in its reasonable effort to design rules that would prohibit fraud, chose to make prompt payment a requirement only relative to termination of the offer.

Whether payment was prompt or not is an issue of fact to be determined in light of the facts and circumstances of a particular tender offer transaction and the customary practices of the financial community. Pryor, supra, at 98,910. This determination must await trial.

In all respects other than indicating the trigger date, the complaint has specified the material elements of the alleged fraud with adequate particularity. Consequently, Count One is dismissed with leave to re-plead the appropriate trigger date.

B. Count 2: Sections 10(b) and 14(e), Rule 10b-5.

The second cause of action alleged by Caleb is brought directly under §§ 14(e) and 10(b), and Rule 10b-5. As indicated supra, when an action is brought directly under § 14(e) it is analytically identical to a 10b-5 action in all respects relevant here. See Chris Craft, supra; Atchley, supra; Pryor, supra. In order to plead this cause of action properly and survive DuPont’s motion to dismiss, Caleb must allege that 1) DuPont misrepresented or omitted to state material facts in connection with the purchase or sale of a security; 2) Caleb relied to its detriment upon DuPont’s misrepresentations or omissions; and 8) DuPont made the misrepresentations or omissions with scienter, that is, an intent to deceive,, manipulate, or defraud. See Rush v. Oppenheimer & Co., Inc., 592 F.Supp. 1108 (S.D.N.Y.1984); Savino v. E.F. Hutton & Co., Inc., 507 F.Supp. 1225, 1231 (S.D.N.Y. 1984); Rosenbloom v. Adams, Scott & Conway, Inc., 521 F.Supp. 372 (S.D.N.Y. 1981), aff'd, 688 F.2d 816 (2d Cir.1982).

It has been stated that “a 10b-5 cause of action exists if the offeror, at the time it made its promise [to pay promptly] did not intend to keep its promise or it knew or perhaps was reckless in not knowing that it could not perform promptly.” 5B Jacobs, Litigation and Practice Under Rule 10b-5 § 193.06. This, in substance, is the content of Caleb’s claim.

DuPont maintains, however, that Caleb’s complaint is insufficient because the pleading alleges that DuPont’s failure to reveal an intent to delay payment was an omission of a material fact rather than a misrepresentation. Having couched the complaint in terms of an omission of a material fact, Caleb, according to DuPont, failed to assert that there was any reliance on the omission. Because, according to DuPont, the failure to reveal an intent to delay payment, if such an intent was present, constitutes a misrepresentation, not an omission, reliance is a necessary element of the pleading. DuPont therefore seeks to dismiss the second count for failure to plead a 10b-5 action properly.

Caleb’s pleading does assert that DuPont omitted in the Prospectus and the supplements thereto to disclose its intent to delay payment. And Caleb’s brief, at 58-60, relies on Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972); Chris-Craft, supra, and Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970) to establish that proof of a material omission eliminates the necessity of establishing reliance.

The distinction between a misrepresentation and an omission is sometimes difficult to discern. See generally 5A Jacobs, supra, at § 61. However, the facts alleged by Caleb in this case constitute an allegation of misrepresentation, not of omission. DuPont in the prospectus stated that it would consummate the exchange “as promptly as practicable.” The essence of Caleb’s allegation is that this assertion was false and that DuPont intended all along to delay payment. In effect, Caleb is attempting to characterize the making of a statement which is alleged to be false as the omission of a declaration that the statement as initially made was false. Where a representation of fact or intent, such as has been made here with respect to prompt payment, is alleged to be demonstrably false by virtue of a concealed intent to delay payment, the misrepresentation is not thus converted into an omission.

Because this 10b-5 action must be pled as a misrepresentation case, Caleb cannot rely on Affiliated Ute, supra, to avoid the necessity of pleading reliance on the stated intent to pay promptly. Because the complaint is deficient in that respect, the second cause of action must be dismissed with leave to replead.

C. Count Three: Aiding and Abetting

The third cause of action alleges that First Jersey aided and abetted DuPont in the violations alleged in Counts One and Two. The elements essential to a cause of action for aiding and abetting a violation of the securities laws are: 1) that there be a primary- wrongdoer who has committed a violation of the securities laws; 2) that the person charged with aiding and abetting be shown to have acted or failed to act in a knowledgeable or reckless manner. (The recklessness standard has been held applicable only where the alleged aider and abettor stands in a fiduciary relationship to the victim); and 3) that the person charged with aiding and abetting be shown to have rendered substantial assistance in furthering the primary wrongdoer’s violation. See ITT v. Cornfeld, 619 F.2d 909, 922 (2d Cir.1980); Edwards & Hanley v. Wells Fargo Securities Clearance Corp., 602 F.2d 478, 484 (2d Cir.1979), cert. denied, 444 U.S. 1045, 100 S.Ct. 734, 62 L.Ed.2d 731 (1980); Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38, 47-48 (2d Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1978).

The first element is pleaded in Count One of this action.

The second element is properly pleaded because paragraph 38 of the complaint alleges actual knowledge of DuPont’s intended delay in payment. Further, Caleb has asserted that First Jersey stood in a fiduciary relationship to Caleb and therefore that First Jersey’s reckless disregard of DuPont’s violation would also satisfy the second necessary element. Although First Jersey disputes its status as a fiduciary, arguing that it served merely as a transfer agent, Edwards, supra, at 484; Affiliated Ute, supra, 406 U.S., at 151-52, 92 S.Ct. at 1471, the Letter of Transmittal tendering shareholders were required to execute, appointed First Jersey the “lawful agent and attorney-in-fact” of tendering shareholders. An agent and attorney-in-fact stands in a fiduciary relationship to the person for whom he acts. Sim v. Edenborn, 242 U.S. 131, 37 S.Ct. 36, 61 L.Ed. 199 (1916); Hobsar v. Eaton, 399 F.2d 781 (6th Cir.1968), cert. denied, 394 U.S. 928, 89 S.Ct. 1189, 22 L.Ed.2d 459 (1969); Detroit Lions, Inc. v. Argouitz, 580 F.Supp. 542 (E.D.Mich.1984).

Although First Jersey argues that the authority granted by the Letter of Transmittal was limited to purely ministerial actions, it is specifically with respect to First Jersey’s handling of those duties defined in the Letter of Transmittal that First Jersey is alleged to have violated its fiduciary responsibility. “An agent is a fiduciary with respect to matters within the scope of his agency.” Restatement of the Law of Agency, 2d § 13. Specifically, Caleb alleges that by amending the Exchange Agent Agreement on August 4, First Jersey along with DuPont materially altered the financing arrangements surrounding the payment of tendering shareholders and the speed with which tendering shareholders would get paid. Even if the scope of First Jersey’s fiduciary authority was limited, it is in the very area of that authority that First Jersey is alleged to have materially and detrimentally altered the rights of tendering shareholders. Such actions, if found to have been taken by First Jersey, do not satisfy the strict standard defined by the courts for fiduciaries. See Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545 (1928) (Cardozo, J.). The reckless disregard standard therefore applies to First Jersey.

Similarly, while First Jersey argues that it did not provide “substantial assistance” to DuPont’s alleged violation, Caleb asserts and alleges that the terms of the August 4 amendment, which also provided an additional $600,000 fee for First Jersey, were essential to the plan to delay payment.

Conclusion

The motion to dismiss is granted with respect to Count One, solely with respect to the trigger date. The motion to dismiss is granted with respect to Count Two. The motion to dismiss is granted with respect to Count Three in view of the limited dismissal of Count One. Leave to replead within twenty (20) days is granted. The parties are requested to determine a schedule for discovery and trial. Should they fail to do so, they should establish a date for a pretrial conference to set the necessary dates.

IT IS SO ORDERED.


author: ENSLEN, District Judge.

text:
    John GABORIK, Plaintiff, v. Hubert “Cal” ROSEMA, individually and as Sheriff of Van Buren County, Sheriffs Department of Van Buren County; and County of Van Buren, jointly and severally, Defendants.
    No. K 83-406.
    United States District Court, W.D. Michigan, S.D.
    Dec. 28, 1984.

      Tat Parish, St. Joseph, Mich., for plaintiff.
    Richard VanOrden, Grand Rapids, Mich., for defendants.
   OPINION

ENSLEN, District Judge.

Plaintiff, a former Van Burén County Deputy Sheriff, brings this civil rights action pursuant to 42 U.S.G. § 1983, alleging that Defendants deprived him of his rights under the First and Fourteenth Amendments. Specifically, Plaintiff alleges that his rights to freedom of speech, freedom of political expression, freedom of political association, freedom of personal association, and “other rights” have been violated by Defendants in retaliation for Plaintiff having supported Defendant Rosema’s opponent (the incumbent) as a candidate for election as Van Burén County Sheriff. Plaintiff alleges that following the election of Defendant Rosema he was denied deputy sheriff status, placed on a permanent “graveyard” shift and undesirable shift rotation, deprived of the status and benefits of being a road officer and command officer and instead relegated to the status of a jailer, denied overtime, denied court time, denied special details and equipment accorded to other officers, and denied meetings with the sheriff to discuss grievances. Plaintiff contends that this conduct ultimately resulted in his constructive discharge. Named as Defendants are the County of Van Burén, the Sheriff’s Department of Van Burén County, and Sheriff Rosema in his individual and official capacities. Presently before the Court is Defendants’ Motion for Summary Judgment, filed October 15, 1984.

I. Standard of Review

To warrant the grant of summary judgment, the moving party bears the burden of establishing the non-existence of any genuine issue of fact that is material to a judgment in his favor. Adickes v. S.H. Kress & Company, 398 U.S. 144, 147, 90 S.Ct. 1598, 1603, 26 L.Ed. 142 (1970); United States v. Articles of Device ... Diapulse, 527 F.2d 1008, 1011 (CA6 1976); Nunez v. Superior Oil Company, 572 F.2d 1119 (CA6 1978); Tee-Pak, Inc. v. St. Regis Paper Company, 491 F.2d 1193 (CA6 1974). If no genuine issue as to any material fact is established, the moving party is entitled to judgment as a matter of law. Chavez v. Noble Drilling Company, 567 F.2d 287 (CA5 1978); Irwin v. U.S., 558 F.2d 249 (CA6 1977).

In determining whether or not there are issues of fact requiring a trial, “the inferences to be drawn from the underlying facts contained in the (affidavits, attached exhibits, and depositions) must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 869 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corporation v. Storm King Corporation, 303 F.2d 425 (CA6 1962). Even if the basic facts are not disputed, summary judgment may be inappropriate when contradictory inferences may be drawn from them. United States v. Diebold, supra; EEOC v. United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry, Local 189, 427 F.2d 1091, 1093 (CA6 1970). In making this determination, the Court must make reference to the entire record and all well pleaded allegations are to be accepted as true. Dayco Corporation v. Goodyear Tire and Rubber Company, 523 F.2d 389 (CA6 1975); Holmes v. Insurance Company of North America, 288 F.Supp. 325 (DC Mich 1968); Mahlar v. U.S., 196 F.Supp. 362 (DC Pa 1961). These guidelines will be adhered to as substantive issues of the motion are examined.

II. Plaintiffs Claim Against Defendant Van Burén County

Defendant County argues that it cannot be held liable under 42 U.S.C. § 1983 for the acts of Sheriff Rosema because “(a) the actions of Defendant sheriff may not be imputed to the County so as to become County policy; and (b) there can be no official policy of the County with respect to those matters complained of against Defendant sheriff.” Defendant contends, in essence, that as to each and every matter of which Plaintiff complains, the sheriff is vested by statute and case law with exclusive authority and is free from constraint or guidance by the County; therefore, Defendant Rosema’s actions cannot be said to represent County policy or custom. Plaintiff responds by arguing that the actions of Defendant Rosema in areas where he is the “final authority” or "ultimate repository of County power” do represent “official policy” for which, the County may be held liable.

In 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 Supreme Court held that Congress intended municipalities and other local government units to be included among those “persons” to whom 42 U.S.C. § 1983 applies. This holding has been applied to counties by the Sixth Circuit. Hays v. Jefferson County, Kentucky, 668 F.2d 869 (CA6 1982), cert. den., 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73. The rule, as stated in Monell, supra, 436 U.S. at 690-691 and 694, 98 S.Ct. at 2035-2036 and 2037:

Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. Moreover, although the touchstone of a § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 “person”, by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental “custom” even though such a custom has not received formal approval through the body’s official decisionmaking channels.
He * * * * *
... [A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.

The Supreme Court has not addressed the question whether a county may be held liable under § 1983 for the actions of its sheriff. Case law from this and other jurisdictions on this issue, which has been researched and discussed at length by the parties herein, is not unequivocal. However, a recent decision by the Sixth Circuit Court of Appeals, which has not been cited by the parties, directs this Court to the conclusion that Defendant County may be held liable for the acts of Defendant Rosema.

Pembaur v. City of Cincinnati, et al, 746 F.2d 337 (CA6 1984) involved a § 1983 action for alleged deprivation of Fourth and Fourteenth Amendment rights. Plaintiff sought, in part, to impose liability on a county for the actions of its sheriff. The trial court concluded that the county could not be held liable for the policies of the sheriff because the sheriff was not subject to the control of the Board of Commissioners, the county’s governing body. The court reasoned that the sheriff’s powers and duties were established by the state legislature, which presumably rendered him a state rather than county official. The Sixth Circuit affirmed the dismissal of the county, but not until it first concluded that the trial court erred in ruling that the county could not be held liable for the actions of its sheriff:

In Monell v. Department of Social Services, 436 U.S. 658, 694 [98 S.Ct. 2018, 2037, 56 L.Ed.2d 611] (1978), the Supreme Court held that a local government can be liable in a § 1983 action when its official policy or governmental custom is responsible for a deprivation of constitutional rights. Apparently recognizing that a local government’s “official policy” can originate from more than one source, the Court stated “it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. (emphasis added). See also, Owen v. City of Independence, 445 U.S. [622,] 657-658 [100 S.Ct. 1398, 1418-1419, 63 L.Ed.2d 673] (1980). Thus, the Board’s lack of control does not necessarily preclude a finding of liability on the part of the County. We must determine whether the nature and duties of the Sheriff are such that his acts may fairly be said to represent the county’s official policy with respect to the specific subject matter.
Initially, we note that the district court is incorrect to the extent that its decision implies that the Sheriff is not a County official. The Sheriff is elected by the residents of the County, Ohio Rev.Code Ann. § 311.01 (Baldwin 1982), and serves as the “chief law enforcement officer of the county.” 1962 Op.Att’y.Gen. No. 3109. He submits his budget requests to the Board, Ohio Rev.Code Ann. § 311.20, which in turn furnishes his office, books, furniture, and other materials. Ohio Rev.Code Ann. § 311.06. His salary and all training expenses are also paid out of the general county fund. Ohio Rev.Code Ann. §§ 325.01-06. Although none of these factors is itself determinative, we believe it is obvious that the Sheriff is a County official. Moreover, we believe that the duties of the Sheriff, as enumerated in Ohio Rev.Code Ann. § 311.67, and his responsibility for the neglect of duty or misconduct of office of each of his deputies, see Ohio Rev.Code Ann. § 311.-05, clearly indicate that the Sheriff can establish county policy in some areas. We conclude, therefore, that, in a proper case, the Sheriff’s acts represent the official policy of Hamilton County and, as such, may be the basis for the imposition of § 1983 liability. Id at slip opinion pp. 5-7. (footnotes omitted) (emphasis supplied).

The holding in Pembaur is consistent with the rationale of the Fifth Circuit in two recent decisions: Familias Unidas v. Briscoe, 619 F.2d 391, 404 (CA5 1980) (in areas in which an elected county official such as a sheriff is, alone, the “final authority or ultimate repository of county power, his official conduct and decisions must necessarily be considered those of one ‘whose edicts or acts may fairly be said to represent official policy’ for which the county may be held responsible under section 1983.”); Van Ooteghem v. Gray, 628 F.2d 488, 494-495 (CA5 1980), cert. den., 455 U.S. 909, 102 S.Ct. 1255, 71 L.Ed.2d 447 (“[t]here is little doubt as to the wisdom of holding a county liable for an official’s acts undertaken in those areas in which the official is the ‘final authority’ or ‘ultimate repository of county power.’ The only way ... any local government entity, can establish ‘official policy’ is through the actions of the individual, or group of individuals, who possess final authority within that body____ A county must be held accountable for more than its officially-codified policies; in cases where the written law of a government entity vests unbridled authority in certain areas in an individual, his decisions become the controlling law and official policy of the entity.”). See also, Echols v. Strickland, US District Court S.Tex. 9-26-80 Memorandum Opinion, reprinted in relevant portion at 49 USLW 2275.

In the instant case, Sheriff Rosema occupies a constitutionally created office to which he was elected by the general public of the county. Mich. Const.1963, Art. 7, Sec. 4; Labor Mediation Board v. Tuscola County Sheriff, 25 Mich.App. 159, 181 N.W.2d 44 (1970); National Union of Police Officers Local 502-M, AFL-CIO v. Wayne County Board of Commissioners, 93 Mich.App. 76, 286 N.W.2d 242 (1979); Brownstown Township v. Wayne County, 68 Mich.App. 244, 242 N.W.2d 538 (1976). He is the chief police officer having to do with law enforcement in the county. Labor Mediation Board, supra, 25 Mich.App. at 164, 181 N.W.2d 44; National Union of Police Officers, supra, 93 Mich.App. at 82, 286 N.W.2d 242. Among the powers of the sheriff provided by statute are authority to hire, fire, and discipline deputies, and to establish rules and regulations for their conduct while employed. M.C.L.A. § 51.70; National Union of Police Officers, supra, 93 Mich.App. at 83, 286 N.W.2d 242; Labor Mediation Board, supra, 25 Mich.App. at 162, 181 N.W.2d 44; Eaton County Deputy Sheriffs Association v. Eaton County Sheriff, 37 Mich.App. 427, 195 N.W.2d 12 (1971). The legislature may by statute vary the duties the sheriff, but it may not change the duties and powers in a way which changes the legal character of the office. Brownstown Township, supra, 68 Mich.App. at 248, 242 N.W.2d 538; Fraternal Order of Police, Ionia County Lodge No. 157 v. Bensinger, 122 Mich.App. 437, 444, 333 N.W.2d 73 (1983). The sheriff has charge and custody of the jails of his county, and of the prisoners therein. M.C.L.A. § 51.75. Charges and expenses associated with maintaining prisoners are paid from the county treasury. M.C.L.A. § 801.4. The salary of the sheriff is set by the County Board of Commissioners, and is paid out of the general fund in the county treasury. M.C.L.A. § 45.401. The Board •'of Commissioners provides necessary office supplies to the sheriff. M.C.L.A. § 45.405. The sheriff may be allowed fees for services, including travel, which are to be paid from the county treasury. M.C.L.A. § 775.4; § 775.6.

As it was in Pembaur, it is obvious in the instant "action that Sheriff Rosema is a county official. Moreover, his nearly unbridled authority over the hiring, firing, disciplining, and regulating of deputies indicates that the sheriff can establish county policy in this regard. He is, indeed, the “final authority” or “ultimate repository of county power” in these areas. I conclude, therefore, that Sheriff Rosema’s acts in the areas involved herein may be found to represent the official policy of Van Burén County and, as such, may be the basis for the imposition of § 1983 liability.

Plaintiff will, of course, be required at trial to establish the existence of a policy, connect that policy to Van Burén County, and show that a particular injury was incurred because of the execution of the policy. See, e.g., Pembaur, supra; Polk v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Wellington v. Daniels, 717 F.2d 932 (CA4 1983).

III. Plaintiffs Claim Against Defendant Van Burén County Sheriffs Department

Defendants next contend that Plaintiffs claim against the Van Burén County Sheriff's Department must fail because, as a matter of law, there is no county agency legally identifiable as a “Sheriffs Department.”

While it may very well be true that there is no such legal entity known as the “Van Burén County Sheriffs Department”, for purposes of this motion I believe there exist genuine issues of material fact on this question which must be left for resolution by the trier of fact. Bayer v. Malcolm County Sheriff, 29 Mich.App. 171, 185 N.W.2d 40 (1970) (refers to a sheriffs department as an “agency of the county”); Simmons v. Stanton, 502 F.Supp. 932 (WD Mich 1980) (numerous references to the Oceana County Sheriffs Department as an entity). Should it appear at trial that Plaintiff has failed to present proofs as to the existence of the Sheriffs Department, Defendants will be free to renew their motion.

IV. Plaintiffs Claim Against Defendant Rosema

Defendants’ final argument is that Plaintiff’s claim against Defendant Rosema is controlled by Michigan’s 2-year statute of limitations governing claims of misconduct brought against a Sheriff. M.C.L.A. § 600.5805(5). Plaintiff contends that his claim against Sheriff Rosema is governed by Michigan’s 3-year statute of limitations for actions involving injury to a person or property. M.C.L.A. § 600.5805(8). Plaintiff terminated his employment on August 1 or August 3, 1981. His complaint was filed August 15, 1983. Under Defendants’ theory, Plaintiff’s claim against Defendant Rosema is barred; under Plaintiffs theory, it is not.

Congress did not enact a statute of limitations for actions brought under 42 U.S.C. § 1983. Therefore, federal courts must apply state statutes of limitations for actions brought under this Act. 42 U.S.C. § 1988; Board of Regents of the University of the State of New York v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1979); Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1974); Leithauser v. City of Madison Heights, 577 F.Supp. 994 (ED Mich 1984). In Johnson v. Railway Express Agency, supra, 421 U.S. at 462, 95 S.Ct. at 1721, this was said to entail identifying and applying the “most appropriate” state statute of limitations. In Board of Regents v. Tomanio, supra, 446 U.S. at 483-484, 100 S.Ct. at 1795, the court stated the goal to be selection of the “state law of limitations governing an analogous cause of action”. In this case, since Michigan is the forum state, the law of Michigan will be applied. Marlowe v. Fisher Body, 489 F.2d 1057 (CA6 1973); Krum v. Sheppard, 255 F.Supp. 994 (WD Mich 1966), aff'd, 407 F.2d 490 (CA6 1967); Kilgore v. City of Mansfield, Ohio, 679 F.2d 632 (CA6 1982).

M.C.L.A. § 600.5805(5) provides:

The period of limitations is 2 years for an action against a sheriff charging misconduct or neglect of office by the sheriff or the sheriff’s deputies.

M.C.L.A. § 600.5805(8) provides:

The period of limitations is 3 years after the time of the death or injury for all actions to recover damages for the death of a person, or for injury to a person or property.

Although opinions from the Sixth Circuit and the Michigan federal district courts concerning the appropriate limitations period for § 1983 actions have been somewhat enigmatic, careful consideration of this case law (and case law from other circuits as well as the United States Supreme Court) and the claims of Plaintiff leads me to conclude that the 3-year statute of limitations contained in M.C.L.A. § 600.5805(8) is applicable herein. Plaintiffs claim against Defendant Rosema, therefore, is not barred as untimely.

In Krum v. Sheppard, 255 F.Supp. 994 (WD Mich 1966), aff'd, 407 F.2d 490 (CA6 1967), the Sixth Circuit affirmed, “for the reasons set forth” by the trial court, a ruling by Judge Fox that the 3-year statute of■ limitations barred a cause of action for an alleged illegal search of a car, illegal arrest of the plaintiff, filing of a false complaint against the plaintiff, and testifying falsely against the plaintiff at preliminary hearings and at trial. After considering the various provisions of Michigan’s statutes of limitations, Judge Fox concluded that an action for damages for deprivation of civil rights is an action for damages for “injuries to persons” within the meaning of the Michigan 3-year statute of limitations. Id at 997-999. Judge Fox rejected a specific 2-year statute of limitations for false arrest or malicious prosecution, stating that a claim under the Civil Rights Act is broader in nature than a tort action governed by the shorter limitations. Id. at 996, fn 1.

The court in Madison v. Wood, 410 F.2d 564 (CA6 1969) held that the 3-year statute of limitations applied to an action by a police officer who alleged he was unlawfully demoted from sergeant to patrolman. Plaintiff essentially alleged denial of the protection under the Fourteenth Amendment by tortious invasion of his right to pursue his chosen profession. The court cited Krum in concluding that plaintiff’s claim that he was “deprived of personal liberty through alleged discrimination” amounted to a “claim to recover damages for injury wrongfully done to the person”. Id. at 567.

Krum was again cited in Marlowe v. Fisher Body, 489 F.2d 1057 (CA6 1973), an action brought pursuant to 42 U.S.C. § 1981 for alleged employment discrimination involving failure to grant advancement and overtime. The court ruled that the reference in plaintiff’s complaint to breaches of contract “does not alter the fact that a deprivation of civil rights is primarily a violation of personal rather than property rights. Accordingly, the Michigan 3-year statute of limitations ... applies.” Id. at 1063.

These Sixth Circuit cases have been cited repeatedly by the Michigan federal district courts in holding the 3-year statute of limitations applicable to various § 1983 factual situations. An-Ti Chai v. Michigan Technological University, 493 F.Supp. 1137 (WD Mich 1980) (allegations of discriminatory treatment and illegal termination of employment by former non-tenured professor against university and three of its officers); Weldon v. Board of Education of the School District of the City of Detroit, 403 F.Supp. 436 (ED Mich 1975) (discharged teacher sued Board of Education and teachers’ union charging racial discrimination in violation of the Fourteenth Amendment); Kurzawa v. Mueller, 545 F.Supp. 1254 (ED Mich 1982), aff'd, 732 F.2d 1456 (CA6 1984) (allegations of abuse or misuse of state procedures and abuse of office by state officials resulting from the termination of parental rights); Abshier v. Tichvon, 500 F.Supp. 444 (ED Mich 1980) (alleged beatings by two county sheriff’s deputies and two state police officers while plaintiff was held in a county jail — county sheriff also named as a defendant). Judge Pratt, in Gordon v. City of Warren, 415 F.Supp. 556, 560 (ED Mich 1976), rev’d. on other grounds, 579 F.2d 386 (CA6 1978) went so far as to opine that the Sixth Circuit in Madison and Krum “established the rule [at least in Michigan] that a wrong alleged under the Civil Rights Act is a constitutional wrong, and that such a wrong is personal in nature” and subject to the 3-year statute of limitations for “injuries to the person".

I believe the rationale of Krum, Madison, and Marlowe, and the district court cases cited — looking at the § 1983 action as a claim based on injury to the person due to the deprivation of civil rights rather than as a claim based on the underlying allegedly tortious facts — to be sound. To characterize Plaintiff Gaborik’s Complaint as involving merely claims for “misconduct” against Defendant Rosema would be to deny the constitutional significance of this allegation. The wrong alleged is constitutional, and it is personal. It should be controlled by application of the Michigan 3-year statute of limitations.

A recent Supreme Court decision, the existence of which the parties are apparently unaware, lends support to the applicability of the 3-year statute of limitations in this action. Burnett v. Grattan, 468 U.S. -, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984) involved whether a state law establishing a procedure for administrative resolution of employment discrimination complaints provided an appropriate statute of limitations for actions brought under the Civil Rights Act. In holding that Maryland’s 3-year statute of limitations for all civil actions for which a statutory limitations period is not otherwise provided should have been applied instead of the 6-month limitations period for administrative actions, the Supreme Court made the following general statements regarding the choice of a limitations period for civil rights actions:

In the Civil Rights Acts, Congress established causes of action arising out of rights and duties under the Constitution and federal statutes. These causes of action exist independent of any legal or administrative relief that may be available as a matter of federal or state law. They are judicially enforceable in the first instance. The statutes are characterized by broadly inclusive language. They do not limit who may bring suit, do not limit the cause of action to a circumscribed set of facts, nor do they preclude money damages or injunctive relief. An appropriate limitations period must be responsive to these characteristics of litigation under the federal statutes. A state law is not “appropriate” if it fails to take into account practicalities that are not involved in litigating federal civil rights claims and policies that are analogous to the goals of the Civil Rights Acts. Id. at 468 U.S. at ---, 104 S.Ct. at 2930, 82 L.Ed.2d at 44-45.

The court rejected a policy of prompt assertion and resolution of public employee disputes in particular, finding that such a policy, “keyed to a classification of plaintiffs”, could not preeiript the broad remedial purposes of the Civil Rights Acts “which make no distinction among persons who may look to the court to vindicate their federal constitutional rights”. Id. at 468 U.S. at -, 104 S.Ct. at 2932, 82 L.Ed.2d at 47. Moreover, a policy of minimizing the disruption of state officials’ attention from their duties was found to be inconsistent with the Civil Rights Acts’ objective of ensuring that individuals whose federal constitutional or statutory rights have been violated may receive monetary or injunctive relief. Id. at 468 U.S. at ---, 104 S.Ct. at 2931-2932, 82 L.Ed.2d at 47-48. In footnote, the Court quoted Pauk v. Board of Trustees, 654 F.2d 856, 862 (CA2 1981), cert. den., 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866:

[i]t would be anomalous for a federal court to apply a state policy restricting remedies against public officials to a federal statute that is designed to augment remedies against those officials, especially a federal statute that affords remedies for the protection of constitutional rights. Id. at 468 U.S. at -, fn. 18, 104 S.Ct. at 2932, fn. 18, 82 L.Ed.2d at 48, fn. 18.

While the instant action is divergent from Burnett factually, the policy reasons behind the decision are equally applicable herein. To apply the 2-year statute of limitations to Plaintiff Gaborik would be' to allow him a shorter period of limitations solely on the ground that he is a plaintiff suing a county sheriff; the same civil rights complaint against a non-sheriff would have a 3-year limitations period. Such an anomalous result would do disservice to the policies behind the creation of a § 1983 cause of action. for employment discrimination brought under § 1988, rather than the state’s 6-month statute of limitations governing suits against state officials for acts done in the execution of office. Hopefully, the Supreme Court’s forthcoming decision will provide further guidance for situations such as that at bar.

It should be noted that the Supreme Court has recently granted certiorari in Knoll v. Springfield Township School District, 699 F.2d 137 (CA3 1983), cert. granted, — U.S. -, 104 S.Ct. 3571, 82 L.Ed.2d 870 (7/2/84), where the court held that Pennsylvania’s 6-year omnibus statute of limitations would be applied to claims

The Court is not unmindful of the Sixth Circuit and Michigan federal district court decisions apparently in conflict with the reasoning adopted herein. See, e.g., Mulligan v. Schlachter, 389 F.2d 231 (CA6 1968) (applied Michigan’s 2-year limitations period for actions charging false imprisonment, malicious prosecution, or misconduct of sheriffs and their deputies to an action against a detective, a sergeant, a lieutenant, and an attorney for conspiracy to deprive the plaintiff of constitutional rights by arrest without probable cause, seizure of property without probable cause, and inadequate attorney representation at trial); Leithauser v. City of Madison Heights, 577 F.Supp. 994 (ED Mich 1984) (trial court rejected Michigan’s 3-year statute of limitations for injuries to person and property, and instead applied 2-year statute of limitations applicable to actions for false arrest and malicious prosecution).

Even applying the technique used in these actions — looking restrictively at the common law action underlying the § 1983 claim to determine the most analogous statute of limitations — I find Michigan’s 3-year limitations period applicable. Plaintiff alleges that he was retaliated against for his political support of an incumbent sheriff. The alleged retaliation, outlined previously, took the form of employment discrimination, which is governed by the 3-year statute of limitations found in M.C.L.A. § 600.-5805(8). Gilbert v. Grand Trunk Western Railroad, 95 Mich.App. 308, 290 N.W.2d 426 (1980). To conclude that this action is merely one claiming “misconduct” by Defendant sheriff would require such a broad reading of that term as to result in every action naming a sheriff as a defendant being classified in that manner. If such a result were intended by the Legislature, statutory language to that effect would have been included. Assuming, arguendo, that it can be said that to some extent Plaintiff’s claims against Defendant Rose-ma include claims for “misconduct”, the gist of his claims plainly involve allegations of discrimination in employment practices; thereby making the statute of limitations applicable to employment discrimination actions the “most analogous”. Therefore, even under the rationale of Mulligan and Leithauser, I believe this action would be governed by the 3-year limitations period.

Defendants’ Motion for Summary Judgment is denied in its entirety. An appropriate Order will be entered forthwith.

      . The Court ultimately concluded that Plaintiff had failed, at trial, to carry his burden of identifying the policy, connecting the policy to the county, and showing that the particular injury was incurred because of the execution of that policy. As stated by the Court at page 7 of the slip opinion:
      We believe that Pembaur failed to prove the existence of a county policy in this case. Pembaur claims that the deputy sheriffs acted pursuant to the policies of the Sheriff and Prosecutor by forcing entry into the medical center. Pembaur has failed to establish, however, anything more than that, on this one occasion, the Prosecutor and the Sheriff decided to force entry into his office____ That single, discrete decision is insufficient, by itself, to establish that the Prosecutor, Sheriff, or both were implementing a governmental policy. Accordingly, the district court properly dismissed the claim against the County. (Citation and footnote omitted) (Emphasis supplied).