author: LORD, District Judge.

text:
    Donald M. NEREM, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. Civ. 5-84-150.
    United States District Court, D. Minnesota, Fourth Division.
    June 18, 1985.
    Keith A. Dunder, Mahoney, Dougherty, and Mahoney, Minneapolis, Minn., for plaintiff.
    James M. Rosenbaum, U.S. Atty. by Carol B. Swanson, Asst. U.S. Atty., Minneapolis, Minn., for defendant.
   ORDER

LORD, District Judge.

This case comes before the court upon the petition of plaintiffs counsel for an award of attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The Secretary of Health and Human Services (Secretary) has opposed the petition.

The Equal Access to Justice Act seeks to reduce the financial impediments to litigating against the government. Foley Construction Co. v. U.S. Army Corps of Engineers, 716 F.2d 1202, 1203 (8th Cir.1983). The act requires the court to award attorney fees to any party who prevails in a lawsuit against the United States unless the government’s position was “substantially justified.” 28 U.S.C. § 2412(d)(1)(A) (1982). The United States has the burden of showing that its position had substantial justification. H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10-11, reprinted in 1980 U.S.Code & Ad.News 4989. Congress felt that where the government forces a party into “lengthy administrative proceedings before final vindication of his or her rights ... the government should have to make a strong showing ... that its action was reasonable.” Id. at 18, reprinted in 1980 U.S.Code & Ad.News 4997, quoted in Cornelia v. Schweiker, 728 F.2d 978, 982 (8th Cir.1984). The EAJA applies to social security disability cases. Cornelia, supra, 728 F.2d at 987. Indeed the act is perhaps more desperately needed here than in any other area. The Social Security Administration has in recent years embarked on a cruel campaign to trim the disability rolls, as the least powerful members of our society have been selected as those most in need of a dose of “fiscal responsibility.” The agency has unlawfully refused benefits, ignored the law of the federal courts, and systematically denied due process to claimants in the effort. See generally Heaney, Why the High Rate of Reversals in Social Security Disability Cases? 7 Hamline L.Rev. 1 (1984); see also Hillhouse v. Harris, 715 F.2d 428, 430 (8th Cir.1983); Nelson v. Heckler, 712 F.2d 346, 348 (8th Cir. 1983). The only place these needy people can hope to receive a fair hearing is a federal court, and the cost of litigating in this forum can be daunting indeed. High court costs assure that the vast majority of the agency’s actions will never be reviewed in any forum. Those who have instigated the present policy are surely aware of this.

In the present case this court granted plaintiff’s motion for summary judgment against the government on March 29, 1985. The court concluded that the medical evidence alone established that plaintiff was totally disabled. This court also found that the Secretary had clearly erred in using the factors outlined in the Eighth Circuit’s second Polaski opinion to discredit plaintiff’s testimony. Nerem v. Heckler, Civ. No. 5-84-150, slip op. at 4-5 (D.Minn., March 29, 1985), citing Polaski v. Heckler, 751 F.2d 943, 948 (8th Cir.1984). The medical evidence was not only consistent with plaintiff’s allegations, but standing alone established his claim. When this court entered its order, the government had already denied this 55-year old carpet layer the benefits he was entitled to under the Social Security Act for some four and a half years.

A review of the files, transcript, and the opinion of the Administrative Law Judge (AU) in this case plainly demonstrates that the government’s conduct throughout these proceedings lacked substantial justification. Because the medical evidence alone established plaintiff’s claim, there was no warrant for the AU to attack his credibility, and then deny him benefits as a malingerer. The factors outlined in Polaski are intended to serve as guides for evaluating testimony when the medical evidence in the case is inconclusive. It was improper and abusive for the AU to use them against this claimant when he had already proven his case. The government’s position was unreasonable both when it denied benefits and when it defended that action before this court. See Cornelia v. Schweiker, supra, 728 F.2d at 981-83.

This court notes in passing that the government’s position in opposing this fee petition also lacks substantial justification. The Secretary in her brief repeatedly cites the case of Wolverton v. Schweiker for the proposition that the government’s position should generally be found unjustified under the EAJA only when there is no evidence to support it. Secretary’s Memorandum at 3, quoting Wolverton v. Schwieker, 533 F.Supp. 420, 425 n. 14 (D.Idaho 1982). The Court of Appeals for this circuit has expressly rejected that analysis in the leading case on the issue. See Cornelia v. Schweiker, supra, 728 F.2d at 983 n. 9. This court finds it remarkable that the Secretary has the temerity to defend her systematic violations of the law with bad law.

Therefore, based on the petition for an award of fees and the memorandum in opposition to an award, and a review of all the files and records herein, IT IS HEREBY ORDERED That an attorney fee of three thousand seven hundred and ninety-eight dollars ($3,798.00) be and is awarded to Keith A. Dunder, plaintiff’s attorney, of Mahoney, Dougherty, and Mahoney, 801 Park Avenue, Minneapolis, Minnesota 55404, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A).


source: Caselaw Access Project

author: KRAM, District Judge.

license: Public Domain

text:
    UNITED STATES of America v. Jose RAMOS, Defendant.
    No. 85 Cr. 4 (SWK).
    United States District Court, S.D. New York.
    June 20, 1985.
    See also D.C., 605 F.Supp. 1057.

      Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. by Robert L. Folks, Asst. U.S. Atty., New York City, for plaintiff.
    Caesar D. Cirigliano, The Legal Aid Soc., Federal Defender Services Unit by Jack Lipson, New York City, for defendant.
   MEMORANDUM DECISION

KRAM, District Judge.

On May 1, 1985, defendant Jose Ramos was tried by the Court, without a jury, on the charges contained in the indictment in this case. At the close of the prosecution’s case, defendant moved, pursuant to Fed.R. Crim.P. 29(a), for judgment of acquittal on Count One of the indictment. The Court reserved decision at that time. Thereafter, without presenting any evidence, defendant rested and renewed his motion for judgment of acquittal. The parties then submitted written summations. Before the Court now, therefore, are defendant’s motion for judgment of acquittal on Count One and the Court’s findings after the bench trial herein.

The Indictment

The defendant was named on January 4, 1985, in a two-count indictment alleging violations of the narcotics laws of the United States. Specifically, Count One charges that Ramos conspired with others, unknown and unnamed, to distribute and possess with intent to distribute cocaine. Count Two charges that on or about December 13, 1984, Ramos actually distributed, or aided and abetted the actual distribution of, cocaine.

The Evidence

The Government presented its case through the testimony of two police officers. The first officer to testify was Police Officer Jose Santiago. Officer Santiago testified that on December 13,1984, he was assigned to act in an undercover capacity in a “buy and bust” operation. Officer Santiago described a “buy and bust” operation as one in which an officer, in an undercover capacity, attempts to purchase illegal drugs from a street seller and then calls in backup officers to arrest the seller of the drugs.

Officer Santiago testified that on December 13, 1984, he went with the rest of his “buy and bust” team to the vicinity of 112th Street and St. Nicholas Avenue in Manhattan. He testified that at about 4:00 p.m. he was approached by a young, his-panic male. He described the individual and identified the. defendant as that individual.

According to Santiago, Ramos asked him in Spanish if he wanted heroin or cocaine (using the Spanish street names for these drugs). Officer Santiago testified that he asked for cocaine. He testified that he and Ramos then walked together up St. Nicholas Avenue and that Ramos approached an unidentified black male and asked for some “blow,” a street name for cocaine. The individual indicated that he had just run out of cocaine and suggested that Ramos and Santiago try the corner of St. Nicholas Avenue and 113th Street.

Santiago testified that he and Ramos then walked to that corner. Ramos then asked an unidentified black male for some “blow.” The individual asked Ramos how much he wanted. Santiago testified that Ramos told this individual that he wanted two dime packages of cocaine. The seller asked Ramos if he had the money. Ramos turned to Santiago and was given twenty dollars of pre-recorded buy money. The seller then told Ramos to tell Santiago to stand aside.

Santiago testified that Ramos and the seller then walked south on St. Nicholas Avenue toward 112th Street. Santiago followed them at a distance of approximately ten to fifteen feet. He testified that he observed Ramos slip the twenty dollars into the seller’s hand. Santiago testified that the seller left at the corner of 112th Street and walked east toward Lenox Avenue. Ramos turned and walked back to Santiago. Santiago testified that he and Ramos crossed St. Nicholas Avenue and that Ramos then handed him one foil packet. Ramos explained that the seller had gone to get the other packet.

A few moments later, the seller returned. Santiago testified that he and Ramos crossed St. Nicholas Avenue toward him. As they approached, the seller placed one packet on a car and directed Ramos to it. Santiago testified that the seller continued walking north on St. Nicholas Avenue.

Santiago testified that Ramos retrieved the packet from the ear and handed it to him. Santiago thanked Ramos and asked him if he could find him again if he wished to make other purchases. Ramos indicated that he was usually in the neighborhood. Santiago testified that they then parted company and that Ramos walked south on St. Nicholas Avenue. Santiago returned to his car a few blocks away and radioed the descriptions of Ramos and the seller to his back-up teams.

Santiago learned over the radio that Ramos had been apprehended, and then drove around for approximately forty-five minutes looking, without success, for the other individual. Santiago testified that he saw Ramos at the station house at approximately 5:20 p.m. and identified him as the person involved in Santiago’s purchase of cocaine.

Santiago indicated in his testimony that he was in Ramos’ presence, or was observing Ramos, for approximately ten minutes. He further testified that Ramos asked him on at least three occasions during that ten-minute span whether he was a cop.

Santiago identified an evidence pouch (Government’s Exhibit 1) as the one he had sealed on December 13, 1984, containing the two foil packets received from Ramos. The parties stipulated that, if called to testify, the chemist who did a field test on the substances contained in those packets would testify that the results of the test were positive indicating that the substances were cocaine.

Police Officer Vincent Coogan was the second person to testify for the Government. He testified that on December 13, 1984, he was a member of one of the two back-up teams in Officer Santiago’s “buy and bust” operation. He further testified that he witnessed the arrest of Jose Ramos and identified Ramos in court as the individual arrested on that day.

Officer Coogan also testified that he was present at approximately 8:50 p.m. when the defendant was interviewed at the 26th Precinct by Assistant United States Attorney Robert Folks. Officer Coogan identified a document containing printed questions and written responses (Government’s Exhibit 2) as the form memorializing that interview. That form indicates that Ramos responded to the question “Would you like to tell me what happened?” with the following statement:

[undercover] came and asked if I had any coke. I said no but I pointed out the dude who did. I suppose [sic] to get $1 but I didn’t get that. I was supposed to get $1 if the bag gets sold but I didn’t get a chance to collect. They got me. They were lookin[g] for him but they missed him.

No further evidence was introduced by the Government. The defendant, as indicated above, rested without introducing any evidence.

Defendant’s Motion for Judgment of Acquittal

At the close of the Government’s case, defendant moved, pursuant to Fed.R.Crim.P. 29, for judgment of acquittal on Count One, the conspiracy count. Relying on United States v. Tyler, 758 F.2d 66 (2d Cir.1985), defendant argued that the Government adduced insufficient evidence of an agreement between himself and the unidentified seller to establish the existence of a conspiracy to distribute cocaine. That motion was renewed when the defendant rested without presenting any evidence in his defense. The motion is currently before this Court.

Rule 29 of the Federal Rules of Criminal Procedure provides, in relevant part, that “[t]he court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment ... after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.”

On a motion for judgment of acquittal, the district judge must determine whether the evidence is substantial enough for a reasonable fact-finder to find guilt beyond a reasonable doubt. See United States v. Taylor, 464 F.2d 240 (2d Cir.1972); United States v. Brown, 462 F.Supp. 184, 187 (S.D.N.Y.1978), rev’d on other grounds, 602 F.2d 1073 (2d Cir.), cert. denied, 444 U.S. 952, 100 S.Ct. 427, 62 L.Ed.2d 323 (1979). As Judge Friendly set out in Taylor,

[t]he true rule, therefore, is that a trial judge, in passing upon a motion for a directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the ... [fact-finder] to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.

464 F.2d at 243 (quoting Curley v. United States, 81 U.S.App.D.C. 389, 392, 160 F.2d 229, 232 (D.C.Cir.), cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947)) (emphasis added).

As the standard requires, I do not test the evidence in a Rule 29 motion based on how I will resolve the matters in dispute, but rather on how a reasonable fact-finder might resolve the issues in dispute. In doing so, I must view the evidence in the light most favorable to the prosecution and resolve all doubts in the prosecution’s favor. See United States v. Artuso, 618 F.2d 192, 195 (2d Cir.1980).

Although the Court did not find the Government’s case to be a strong one, viewed under the appropriate standard, defendant’s motion must be denied. Relying on Tyler, defendant argues that there is insufficient evidence to establish the existence of an agreement. Defendant’s reliance on Tyler is to no avail.

In Tyler, the defendant had offered to help an undercover officer purchase heroin. He had made “some type of inquiry” of one unidentified individual (at 68), and then encountered a seller of heroin. After the defendant had a brief conversation with the seller, the seller approached the undercover officer and they consummated the deal without any further involvement of the defendant. The defendant then walked up to the undercover officer and asked for some change. Based on this evidence, Tyler was convicted of a conspiracy to distribute heroin.

The Second Circuit reversed Tyler’s conviction on the conspiracy count because the evidence adduced at trial was insufficient to establish the existence of an agreement. The Second Circuit noted several facts that were “conspicuously absent” which might have supported a finding that an agreement existed. At 68. Those were as fob lows: (1) the defendant had not ascertained from the undercover officer the quantity of heroin desired; (2) there had been no indication that the defendant had a specific source in mind; (3) there was no evidence that the defendant knew where to find the ultimate seller or expected him to be in the area; and (4) there was no evidence that the defendant had any pre-existing relationship with the seller, or that he had made any previous deals with him.

In the instant case, there is evidence that Ramos asked Santiago how much cocaine he desired. Officer Santiago testified, at least at one point, that Ramos asked him during their initial conversation how much he wanted.

Moreover, there is evidence which might indicate that Ramos had a specific source or sources in mind. Officer Santiago testified that the first individual Ramos approached indicated that he had just run out of cocaine. That individual suggested going to the corner of 113th Street, but did not identify a source. Ramos, nonetheless, approached the seller without further assistance and secured the cocaine. A reasonable fact-finder could infer from the fact that Ramos went directly to two sources of cocaine that he had his sources in mind to begin with.

Finally, and most significantly, there was evidence tending to suggest that Ramos had a pre-existing relationship with the seller. Unlike in Tyler, the seller dealt exclusively with Ramos, and not with the undercover purchaser, even though he apparently knew who the actual purchaser was. Moreover, during AUSA Folks’s prepresentment interview of Ramos, Ramos indicated that he “was supposed to get $1 if the bags gets sold but [he] didn’t get a chance to collect.” A reasonable fact-finder could infer from that statement that Ramos had an agreement with the seller whereby he received one dollar for each sale he procured. Unlike Tyler, Ramos made no effort to get any money from Santiago. He did, however, have the opportunity to do so. It would appear, therefore, that Ramos’ anticipated reward was to come from the seller.

In sum, the Court finds that there was sufficient evidence from which a reasonable fact-finder could find Ramos guilty beyond a reasonable doubt. Accordingly, his Rule 29 motion is, perforce, denied. Having said this, however, it remains to be seen whether this reasonable fact-finder is convinced beyond a reasonable doubt.

Judgment on the Merits

The defendant did not request special findings of fact pursuant to Fed.R.Crim.P. 23(c). Nevertheless, the Court feels that more detailed findings are appropriate in this case. See United States v. Figueroa, 337 F.Supp. 645, 652 (S.D.N.Y.1972) (approving sua sponte decision to find facts specially); see also Sullivan v. United States, 348 U.S. 170, 75 S.Ct. 182, 99 L.Ed. 210 (1954). In reviewing the evidence and determining my findings, I have read the parties’ written summations and treated them as proposed findings of fact and conclusions of law.

Count One

One of the essential elements of the crime of conspiracy charged in this count is an agreement or understanding to violate the law. See United States v. Barnes, 604 F.2d 121, 154 (2d Cir.1979) (“The gist of the offense of conspiracy is agreement.”). The evidence which would support a finding that such an agreement existed is discussed above. Drawing all inferences in favor of the prosecution might lead one to find the existence of an agreement. Nonetheless, I am not convinced beyond a reasonable doubt that such an agreement existed. Officer Santiago’s description of the events that transpired on December 13th suggest that Ramos may have been simply a scavenger — seeking out willing purchasers and, then, willing sellers in the hope of gaining some financial reward. It is entirely possible that no agreement existed between Ramos and the seller at any time.

Great reliance is placed on Ramos’ statement to AUSA Folks in support of the inference that such an agreement existed. It is possible, however, that Ramos’ statement is a total fabrication. Ramos’ statement is not consistent with Santiago’s testimony insofar as he indicates that he merely “pointed out the dude” who had cocaine for sale. Thus, it would appear that Ramos may have been trying to minimize his involvement in the transaction. It is possible that Ramos made up that part of the statement which discussed a one dollar gain in furtherance of those efforts to minimize his involvement.

Moreover, even assuming the truth of Ramos’ statement regarding his anticipated gain, it is possible that Ramos received an ad hoc promise of one dollar from the seller for this single transaction. Ramos and the seller were out of Santiago’s earshot when the money and the first packet of cocaine changed hands. It is possible that the seller promised Ramos a one dollar reward at this point. An “agreement,” if such a promised reward can be called that, formulated at this late point in the transaction would not satisfy me that a conspiracy existed.

In sum, several equally plausible scenarios are suggested by the evidence against Ramos. Only one of those scenarios involves an agreement sufficient to support a conviction on the conspiracy count. The Government has not proven to me beyond a reasonable doubt that such an agreement existed. Accordingly, the defendant is hereby adjudged not guilty on Count One. Count Two

The evidence was much stronger as to Count Two. Officer Santiago testified that he was with, or was observing, the individual procurer for approximately ten minutes. His identification of Ramos as that individual convinces me beyond a reasonable doubt that Ramos was the person involved in the transaction on December 13th.

Moreover, the testimony of Officer Santiago established beyond a reasonable doubt that on December 13, 1984, Ramos came into the possession of two packages of a substance purported to be cocaine from an unidentified seller and that he distributed those packages to Santiago.

Santiago’s testimony further established that Ramos volunteered to procure cocaine for him, and, therefore, that his conduct was voluntary and deliberate. Moreover, Santiago’s testimony regarding Ramos’ concern about whether Santiago was a police officer demonstrated beyond a reasonable doubt that Ramos was aware of the general, unlawful nature of his acts.

The evidence also established beyond a reasonable doubt that the substance distributed contained cocaine. Finally, the evidence showed that the conduct involved took place on or near St. Nicholas Avenue in the borough of Manhattan, which is within the Southern District of New York.

In sum, the Government proved beyond a reasonable doubt all of the elements of the crime of distributing a Schedule II narcotic drug controlled substance. Accordingly, Ramos is hereby adjudged guilty on Count Two.

As set out above, Ramos’ motion for judgment of acquittal, pursuant to Fed.R. Crim.P. 29, is DENIED; Ramos is adjudged NOT GUILTY on Count One of the indictment; and Ramos is adjudged GUILTY on Count Two of the indictment.

SO ORDERED.

      . The testimony was unclear as to when and how Ramos learned how much cocaine Santiago wanted to purchase. Santiago apparently told Ramos that he wanted two dime packages, or twenty dollars worth of cocaine, either during their initial conversation or in response to this seller’s inquiry.

      . In Tyler, the evidence did not even establish that the conversation with the first unidentified individual involved the sale of narcotics.

      . Even if I were not convinced beyond a reasonable doubt that Ramos actually distributed the narcotic substances, the Government proved beyond a reasonable doubt that he aided and abetted the actual distribution of those substances. There is no doubt whatsoever from the evidence adduced at trial that Ramos "associatefd] himself with the venture, that he participate^] in it as in something that he wishe[d] to bring about, [and] that he [sought] by his acción to make it succeed.” See United States v. Bommarito, 524 F.2d 140, 145 (2d Cir.1975), quoted in Tyler, at 70.


author: CEREZO, District Judge.

text:
    Gloria SANTIAGO-RIVERA, Plaintiff, v. ROYAL INSURANCE COMPANY OF PUERTO RICO, Defendant.
    Civ. 84-2623CC.
    United States District Court, D. Puerto Rico.
    June 20, 1985.
    David Rivé-Rivera, Vargas & Rive, Hato Rey, P.R., for plaintiff.
    José E. Alfaro-Delgado, Arias Cestero & Arias Guardiola, Santurce, P.R., for defendant.
   OPINION AND ORDER

CEREZO, District Judge.

This is a personal injury action brought pursuant to the diversity of citizenship grant of jurisdiction. Plaintiff alleges in the complaint filed on October 19,1984 that “[o]n or about February, 1983” she fell while in a building owned by Miguel, Alicia and Edwin Francisco, the alleged heirs of Miguel Francisco, who had insurance for this type of risk with the Royal Insurance Company of Puerto Rico. It is a direct action against the Royal Insurance Company of Puerto Rico as sole defendant pursuant to Puerto Rico’s direct action statute. P.R.Laws Ann., Title 26 Section 2003(1). Defendant seeks dismissal urging that the action is time barred for it was filed well after the one-year period “from the time the aggrieved person had knowledge thereof” as provided by P.R.Laws Ann., Title 31 Section 5298. Plaintiff contends that a previous suit, Civil 83-2404, filed in this court against the heirs of Miguel Francisco and against an unknown insurance company tolled the statute of limitations. Defendant claims that since the earlier action was dismissed because it was filed against a non-suable entity, the statute of limitations was not tolled against the heirs of Miguel Francisco and since the action against them is time barred there can be no action against the insurance company. The action against the insurer is time barred although for different reasons. To understand why the action against Royal Insurance Company of Puerto Rico is also barred we must first review the pleadings and proceedings in Civil 83-2404.

The first lawsuit was based on exactly the same facts set forth in the complaint before us but the defendant was identified only as “Sucesión Miguel Francisco.” A brief reference was made to an “X Insurance Company” as codefendant although no mention was made of it in the caption of the case, the civil cover sheet accompanying the complaint or in any other filing prior to dismissal. That complaint was dismissed on December 14, 1983 “for failure to state a claim against a suable entity.” A Motion to Reconsider Judgment was denied on January 18, 1984. Plaintiff appealed. Dismissal judgment was affirmed on October 3, 1984. On May 17, 1984, while her appeal was pending, plaintiff filed a Motion for Relief Pursuant to Rule 60 apparently addressed to the appellate court, indicating that she had found out the names of the members of the estate and of the “two insurance company, one of which is Royal or Travelers Insurance Company” and requesting permission to file an amended complaint with the correct defendants so as to moot the appeal. On May 25, 1984 she filed a motion, this time directed to the district court, for leave to file an amended complaint with the names of the members of Sucesión Miguel Francisco and of “X” insurance company. Plaintiff was told in a footnote order that this court did not have jurisdiction to entertain such a motion because the appeal was still pending. Our Circuit had before it the proposed amended complaint. It noted that plaintiff did not submit an amended complaint with her motion for reconsideration and, thus, continued to fail to bring suit against a suable entity. It found “unpersuasive” the argument that the district court should have granted her leave to amend the complaint.

After reviewing Civil 83-2404 we are convinced that plaintiff views the present action as a continuation of her previous one.

Plaintiffs arguments rest on principles from Puerto Rico’s Spanish-derived law of prescription. As both parties admit, since this is a diversity case and the question of time limitations is one of substantive law, we must turn to the laws of Puerto Rico. Santiago v. Becton Dickinson & Co., S.A., 539 F.Supp. 1149, 1151 (DPR 1982). The one-year statute of limitations for personal injury claims is applicable to direct actions against the insurer. Ruiz-Millán v. Maryland Casualty Co., Vol. 1, Official Translations of the Opinions of the Supreme Court of Puerto Rico, p. 343, 101 DPR 249 (1973). This period may be tolled by filing the action in court, by making an extrajudicial claim, and by any act of acknowledgment of the debt by the debtor. P.R.Laws Ann., Title 31 Section 5303. When the limitations period is interrupted, it starts running anew once the interruption ceases. De Jesús-Martínez v. Chardón, 0-84-533, opinion of March 19, 1985 Supreme Court of Puerto Rico, 85 JTS 20 at p. 3901, n. 7. The countdown on the interruption resulting from the filing of a lawsuit starts on the day the complaint is filed and not when the defendant is actually summoned. It interrupts the limitations period for the entire duration of the case, regardless of its outcome, i.e. dismissal for lack of subject matter or personal jurisdiction. De Jesús-Martínez, 85 JTS 20 at p. 3898 and p. 3900, n. 4; Durán-Cepeda v. Morales-Lebrón, 112 DPR 623 (1982) (Official Translation pending publication) and cases cited at p. 625). Based on these principles, plaintiff concludes that Civil 83-2404 interrupted the statute of limitations as to the unknown insurance company which turned out to be Royal Insurance Company of Puerto Rico for, although the action was dismissed, it was filed within the one-year period. Plaintiffs reasoning ignores the relevant procedural data of Civil 83-2404 and the separateness of the present action.

Defendant’s reliance on several older cases which held that if there was no cause of action against the insured there was no possible claim against the insurer is misplaced, given the separate nature of the action against the insurer provided by section 2003(1) and see e.g.: Trigo v. The Travelers Ins. Co., 91 PRR 843 (1965). However, its position that the complaint in Civil 83-2404 did not toll the statute of limitations is correct. The present action against the insurer is time barred not because the action against the insured is barred but because the complaint in Civil 83-2404 was never properly made against the Royal Insurance Company of Puerto Rico. The civil law principles of prescription found in sections 5291 through 5305 are not called into play in this situation. The problem here finds its answer in Puerto Rico’s procedural mechanism of John Doe defendants rather than in Spanish and French treatises on prescription matters. Although the rules of civil procedure of Puerto Rico allow relation back of an amendment to substitute a John Doe defendant under certain conditions, so that the date of filing of the original complaint is considered as the date on which the statute of limitations was tolled, see: Santiago, 539 F.Supp. at 1152-1155, and cases there cited, no such amendment was ever authorized in Civil 83-2404. Since plaintiff failed to follow through with the unknown defendant mechanism, the action against X Insurance was never converted into one against the Royal Insurance Company of Puerto Rico at any time so as to enable plaintiffs to avail themselves of the interruption by judicial action provided in Title 31, section 5303 through the retroactive effect of a properly made John Doe substitution. See: P.R. Laws Ann., Title 32 Ap. Ill R. 13.3 and 13.4; Ortiz v. Municipal Government of Ponce, 94 PRR 449, 454-56 (1967); cf: Rogatz v. Hospital General San Carlos, 89 F.R.D. 298 (DPR 1980) (relation back effect of amendment to bring insurance company after statute of limitations had run in timely action-against insured was not permitted under federal rules).

A second tier in plaintiff’s tolling argument is the' contention that the action against Sucesión Miguel Francisco can be considered an interruption against the insurer under section 2003(2). Even assuming for purposes of argument that Sucesión Miguel Francisco, not its members, was the insured and that a complaint which was brought against a non-entity, and which was never amended to include the proper party could be considered an interruption, the position adopted by plaintiff was expressly rejected in Ramos v. Continental Insurance Company, 493 F.2d 329, 333 (1st Cir.1974). The Court there discussed section 2003(2) which provides that a plaintiff may bring suit against the insured alone and recover from the insurer after securing final judgment against the insured. It concluded that the cause of action against the insurer in Ramos was based not upon a recently acquired judgment in plaintiff’s favor but upon the accident itself after a prior unsuccessful suit against the insured. The same reasoning applies to the situation before us in distinguishing this section of the Insurance Code for our case is not one of subrogation after obtaining judgment against the insured. It is based on the 1983 accident itself. In Ruiz-Millán v. Maryland Casualty Co., 1, Official Translations, 343, an action for personal injuries was filed within the one-year period of limitations against a municipality only and was dismissed for failure to comply with a special notice requirement for claims against municipalities. Plaintiffs then filed another action against the municipality’s insurer. Despite the prior timely action against the insured municipality and the fact that the second action was filed within a new one-year period had the first action been considered an interruption as to the insurer, the Supreme Court affirmed the lower court’s dismissal of the second action against the insurance company. It held that since the action against the insured and the direct action against the insurer had the same origin and depended upon the same proof, the statute of limitations was the same for both. Cf: Rogatz, 89 F.R.D. 298. (In considering that only if the amendment to join the insurer was given a relation-back effect could the original timely action’s tolling effect benefit plaintiff against the insurer, the court assumed that the original complaint against the insured did not toll the action against the insurer.) There is no reason to reach a different conclusion in the present case given our finding that the prior action, Civil 83-2404, was never one against the Royal Insurance Company of Puerto Rico. There being no other allegations as to interruptions of the limitations period through other means, the complaint is hereby DISMISSED as time barred. Judgment shall be entered accordingly.

SO ORDERED.

      . This is the most we can decipher from plaintiff’s motion which states in part:
      Leave in (sic) requested of this Honorable Court to file, pursuant to Rule 60(b)(2) and/or the amended complaint. Because the U.S. District Court at San Juan, would not accept it, the filing of this motion is (and was) made in Good Faith and with the request that the Court on the U.S. District Court at San Juan make the appropriate disposition of this motion.

      . In De Jesús-Martínez, the Supreme Court of Puerto Rico ruled that, if the action is filed by one who does not possess the right claimed, no interruption results from the judicial action. It would be interesting to analyze what happens if the claim is filed against the incorrect party or, as in Civil 83-2404, when the complaint is filed against a non-existent entity and is never corrected by amendment. Can this be considered the interruption by a judicial claim referred to in section 5303? See: Fuentes v. District Court, 73 PRR 893 (1952).


author: MOTLEY, Chief Judge.

text:
    Jerome SPANO, Plaintiff, v. Police Officer Albert SIMENDINGER, Police Officer John Galvin, et al., Defendants.
    No. 81 Civ. 4562 (CBM).
    United States District Court, S.D. New York.
    June 20, 1985.

      Donovan Leisure Newton & Irvine by Maria T. Galeno, Joseph L. Ciasen, New York City, for plaintiff.
    Frederick A.O. Schwarz, Jr., Corp. Counsel by Christopher R. Gette, New York City, for defendants.
   MEMORANDUM OPINION AND ORDER

MOTLEY, Chief Judge.

On December 5, 1984, following a trial before this court, a jury found that unnecessary, unreasonable, and excessive force had been used against plaintiff Jerome Spa-no at the time of his arrest by defendant Police Officer John Galvin, in violation of 42 U.S.C. section 1983. The jury rendered a verdict for plaintiff in the amount of $2,500. The matter is now before the court on the motion of plaintiff for attorneys’ fees of $62,078.21 pursuant to 42 U.S.C. section 1988. For the reasons set forth below, plaintiff’s motion is granted.

The prevailing party in a section 1983 action may be awarded, at the court’s discretion, “a reasonable attorney’s fee as part of the costs.” 42 U.S.C. section 1988. The availability of attorneys’ fees in such cases is an integral part of Congress’s attempt to encourage plaintiffs to enforce the civil rights laws by acting as private Attorneys General. McCann v. Coughlin, 698 F.2d 112, 128 (2d Cir.1983).

Plaintiff seeks $62,078.21, of which $50,-325.00 is attributed to the time of Maria T. Galeno, plaintiff’s lead counsel. An additional $4,980.00 is sought for time spent on the case by Joseph L. Ciasen, III. These amounts represent 838.75 and 83 hours, respectively, at a rate of $60 per hour. At the time of trial, both attorneys were associates with the firm of Donovan Leisure Newton & Irvine. Plaintiff also seeks $6,773.21 in disbursements, nearly half of which is attributable to preparing deposition transcripts. In support of the fee application, plaintiff’s counsel submitted a detailed affidavit and a day-by-day breakdown of time spent and tasks performed over the two years that counsel worked on the case.

Defendants do not dispute that an award of attorneys’ fees is appropriate, but advance three arguments for the reduction of plaintiff’s fee request: 1) That since plaintiff prevailed on his claim against only one defendant and dropped related claims prior to trial, he should only recover a partial award, 2) that plaintiff’s award should be reduced to reflect the $2,500 damage award, and 3) that plaintiff’s counsel devoted excessive time to the case. The court will address these arguments in turn.

Although plaintiff recovered against only one defendant, he prevailed on his essential claim: That his civil rights had been violated through the use of excessive force in his arrest. Plaintiff’s claims against other defendants and other theories of recovery all arose out of the same common factual core and time spent investigating or preparing one or another aspect of the case cannot neatly be separated from time spent on the winning claim. See Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983); McCann, 698 F.2d at 129-30. Although time was spent investigating a claim of conspiracy and coverup which was dropped prior to trial, this claim also arose out of the same incident and the fruits of such investigation might have been useful in proving the underlying claim. In sum, plaintiff’s constitutional rights were violated under the facts which form the basis for all of his claims. This is not a case where plaintiff filed a “kitchen sink” complaint alleging myriad unrelated and unsubstantiated claims. Therefore, that he only prevailed against one defendant or on one theory does not provide a ground for reducing the award.

Defendants’ second argument also must be rejected. The size of a monetary award need bear no relation to the amount granted in attorneys’ fees. In McCann, the Second Circuit held that since the purpose of section 1988 is to encourage the vindication of civil rights regardless of the amount of damages, it was not error for the district court to grant substantial attorneys’ fees even where only one dollar in nominal damage had been awarded. 698 F.2d at 128-29.

In DiFilippo v. Morizio, 759 F.2d 231 (2d Cir.1985), the circuit court went further, holding that “a reduction made on the grounds of a low award [is] error unless the size of the award is the result of the quality of the representation.” Id. at 235. A full award of attorneys’ fees should be made so long as “the award is typical of awards in the same type of case.” Id. at 236. In the case at bar, there is no indication that the award of $2500 for plaintiff’s relatively minor injuries was either unusual or the result of counsel’s performance. The jury found that plaintiff’s rights had been violated through police brutality, but did not find him entitled to extensive compensatory damages. This is precisely the sort of case for which the attorneys’ fees provision was intended: One in which important constitutional concerns are implicated but the prospect for recovery would not encourage private counsel to take the case on a contingency basis.

Finally, defendants argue that the actual hours billed by plaintiff’s counsel were excessive. Defendants catalogue numerous examples in plaintiff’s well-documented time records of tasks that they argue should have been done in less time. Upon reviewing these records, the court is compelled to disagree. Although the facts in this case and the resulting trial were not especially complex, plaintiff’s counsel had to deal with many layers of City and State bureaucracy in order to investigate plaintiff’s claim. Various avenues of investigation argued by defendant to be irrelevant to plaintiff’s ultimate recovery can only be viewed as such with the benefit of hindsight. Such activities as reviewing civilian complaints and deposing supervising officers were entirely reasonable expenditures of time in light of plaintiff’s good faith claims and theories, regardless of what ultimately was pursued or proved at trial.

In addition, even if some small part of plaintiff’s documented time was shown to be excessive, the court notes that plaintiff has not sought reimbursement for the time spent on this case by partners, other associates, summer associates, paralegals, and stenographers or for time spent in post-trial matters. Counting this additional time, plaintiff’s firm expended approximately $122,083.06 in time and disbursements. Moreover, defendant does not dispute that the $60 hourly fee requested by plaintiff’s counsel is modest by the standard of New York private practice and is even below the rate awarded in some cases under section 1988.

Defendants note that the Second Circuit has held that when plaintiff fails to recover on many unrelated claims a district court may not use the reduced rate sought by plaintiffs’ firm to justify denying a request to reduce the attorneys’ fee award. McCann, 698 F.2d at 130. Nevertheless, in this case, the court has found that the time spent by counsel all relates to the underlying claim upon which plaintiff prevailed and the court has examined plaintiff’s detailed submissions and found them to be reasonable. Therefore, the court may fairly conclude that plaintiff’s drastically reduced request more than compensates for any minor criticisms the court might have of counsel’s allocation of time.

Moreover, defendants’ opposition to plaintiff’s claimed hours reflects a regrettable misapprehension about the importance of civil rights cases. In categorizing this as a “low value case” not warranting “work product ... of an appearance and quality consistent with the firm’s normal work on high value matters,” Defendants’ Memorandum at 11, the Corporation Counsel fails to appreciate that a jury finding of police brutality has significance for more than just the instant plaintiff. The vindication of plaintiff’s rights serves as a deterrent to the use of excessive and illegal force by the state’s peace-keepers. The value to society of Donovan, Leisure’s pro bono efforts in this case therefore cannot be measured merely by the size of the damage award or even' the extent of plaintiff’s physical injuries. In this context, defendants’ attempt to characterize this case as one of only “private concern” rings false.

In sum, plaintiff has amply justified his requested award of attorneys’ fees and disbursements in the amount of $62,029.71 in addition to his $2,500 in damages. The clerk is directed to enter final judgment in accordance with this opinion.

SO ORDERED.


author: ARONOVITZ, District Judge.

text:
    Philip SIEGEL, Petitioner, v. U.S. PAROLE COMMISSION, et al., Respondents.
    No. 85-1986-Civ.
    United States District Court, S.D. Florida.
    June 21, 1985.

      J. Robert Cooper, Atlanta, Ga., for petitioner.
    David H. Lichter, Asst. U.S. Atty., for respondents.
   MEMORANDUM OPINION IN SUPPORT OF ORDER SETTING BOND AND DIRECTING RELEASE OF PETITIONER UPON POSTING OF BOND

ARONOVITZ, District Judge.

THE COURT having carefully examined the file and the applicable law, and having issued an order under date of June 19,1985 granting Petitioner’s Motion for Bond and staying proceedings, hereby enters its Memorandum Opinion in support of said order which set bond and directed the release of petitioner upon the posting thereof.

Background

Petitioner Philip Siegel has filed a Petition for Habeas Corpus under 28 U.S.C. § 2241, alleging that his parole was revoked in violation of his rights under the Due Process Clause. Siegel contends that the United States Parole Commission has acted arbitrarily and in violation of its own rules and regulations. After filing his Petition, Siegel submitted an Extraordinary Motion for Stay of U.S. Parole Commission Warrant, which was denied. A warrant of arrest was issued and executed; at the time of the order setting bond, Siegel was incarcerated at the federal institution at Talladeega, Alabama.

When Philip Siegel’s parole was revoked, he pursued two courses of action. First, he filed an appeal of the Commission’s decision to revoke with the National • Parole Reviews Board, and second, he filed the instant action, alleging that further pursuit of his administrative remedies would be futile. In her report to the Undersigned District Judge, Magistrate Charlene H. Sorrentino recommended that the Petition be dismissed without prejudice; because of the aforementioned appeal, Siegel had not exhausted his administrative remedies.

The Court will hold in abeyance the Magistrate’s Report until such time in the future when it is more appropriately addressed. At this juncture, given the fact that the sixty day period allowed for the National Board to address Petitioner’s appeal has not expired, the Court does not consider it appropriate to address the merits of Siegel’s Petition. These proceedings, therefore, are stayed until thirty days after a final determination by the National Board, or until such other time as set by the Court if the National Board fails to act timely on Petitioner’s appeal. In the meantime, Petitioner’s request for bond must be addressed. Petitioner presents a substantial constitutional claim, and the Motion for Bond has significant merit in itself, and without regard to the merits of the instant habeas corpus petition.

Bond and Exceptional Circumstances

Subsequent to Petitioner’s arrest, the Motion for Bond was filed and, as stated above, the Court held a non-evidentiary hearing thereon. While a parolee has no constitutional right to bail, a district court has the inherent power to grant bail in a habeas proceeding brought by a parolee. Argro v. United States, 505 F.2d 1374 (2d Cir.1974). However, bail pending review of a parole revocation is granted only upon a showing of exceptional circumstances. Galante v. Warden, 573 F.2d 707 (2d Cir. 1977). In this Circuit, the phrase “exceptional circumstances” includes the requirement that the Petitioner “raise substantial constitutional claims upon which he has a high probability of success.” Calley v. Callaway, 496 F.2d 701 (5th Cir.1974).

In the instant case, it is apparent on the face of the papers filed that Petitioner presents a significant constitutional claim upon which he has a substantial likelihood of success either on appeal to the National Board, or on habeas corpus, or on a de novo consideration of this matter by the United States Parole Commission. Philip Siegel originally was charged by the Parole Commission with three violations of his parole condition prohibiting association with persons having a criminal record. The panel examiners, Cook and Essex, apparently concluded that there was insufficient evidence to make a finding as to the first two charges. With respect to the third charge involving a short telephone conversation with Jay Wolf, Panel Examiner Essex made no finding of a violation, and Panel Examiner Cook found that there was a violation, but that it was insufficient to warrant revocation of parole. Siegel himself reported the conversation with Wolf which took place in May, 1984. Siegel admitted that he spoke to Wolf, but only for twenty or thirty seconds during a telephone call to Siegel’s parents to wish them greetings during the Passover season. Wolf’s parents put Jay Wolf on the line after Siegel inquired about him. Panel Examiner Cook found that there was a violation, but only for “technical reasons.”

On administrative review, a third examiner, Chait, agreed with Cook that there was a violation, but disagreed with both about the decision not to revoke. In his report, Chait goes on to cite matters which apparently were not before the original panel, and which had little to do with the conversation with Wolf. In subsequent administrative proceedings, there were other apparent irregularities and there are conflicting dates.

The Parole Commission’s rules and regulations should guarantee parolees some measure of due process of law. When they are not followed significant constitutional rights are implicated. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Clearly, to revoke Siegel’s parole on the basis of “proscribed association” for an incidental thirty second telephone conversation to wish Passover greetings would be arbitrary and capricious, and not in accordance with the established meaning of such “association” under the cases. United States v. Furukawa, 596 F.2d 921 (9th Cir.1979).

This case thus presents a unique set of facts and extraordinary circumstances. While the Court does not herein make any specific findings of fact, it is apparent on the face of the papers in the Court file that bond is warranted pending Petitioner’s appeal, or de novo consideration by the Parole Commission. A very serious constitutional violation is alleged, and the file reveals that Petitioner has a high probability of ultimate success on the merits.


author: JAMES LAWRENCE KING, Chief Judge.

text:
    EUROWORLD OF CALIFORNIA, INC., a California corporation, Plaintiff, v. Rudy BLAKEY, d/b/a Rudy Blakey Engine Shop, Defendant.
    No. 81-1261-CIV.
    United States District Court, S.D. Florida, S.D.
    June 24, 1985.

      Louis Vernell, Miami Beach, Fla., for plaintiff.
    Barry Greenberg, Coral Gables, Fla., for defendant.
   ORDER AND FINDINGS OF FACT AND CONCLUSIONS OF LAW

JAMES LAWRENCE KING, Chief Judge.

The above-styled action came on for trial before this Court on October 16, 1884.

Based upon the entire record in these proceedings, including the parties’ closing arguments and memoranda of law, submitted in writing, and pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the findings of fact and conclusions of law of this Court are:

Findings of Fact

1. Plaintiff, Euroworld of California, Inc. (Euroworld), is a California corporation with its principal place of business in Long Beach, California. (T. 14) Euroworld is a wholly-owned subsidiary of Specialty Restaurants Corporation, a large company with restaurants throughout the United States which are primarily theme restaurants, including the 94th Aero Squadron Restaurants of Miami and Fort Lauderdale, and the Rusty Pelican Restaurant of Key Biscayne.

2. Defendant, Rudy Blakey (Blakey), is a citizen of the State of Florida doing business as Rudy Blakey Engine Shop in Miami, Florida. (T. 75) (Plaintiff’s Trial Exhibit 10, Rudy Blakey Depo. p. 4.) Blakey has been in the business of overhauling, repairing, and selling aircraft engines for twenty-five years. (T. 75)

3. Euroworld brought to Fort Lauder-dale, Florida, aircraft engines and parts which it had purchased from the Morrocan government. (T. 42)

4. In 1979, Blakey went to Fort Lauder-dale, Florida, for the purpose of buying aircraft materials and engine parts for use in his engine shop. (Plaintiffs Trial Exhibit 10, Blakey Depo. p. 7.) At that time, Blakey met with Euroworld’s representative Robert Craig. (T. 77) (Plaintiff’s Trial Exhibit 10, Blakey Depo. p. 8.) Blakey agreed to accept in trade twenty-four 1830 engines from Euroworld in exchange for his providing Euroworld eight “zero-time” (overhauled) 1830 engines. (Plaintiff’s Trial Exhibit 10, Blakey Depo. p. 19.)

5. On October 1, 1979, Blakey received the first shipment of engines and signed a written agreement, dated that date, whereby he agreed to deliver to Euroworld eight 1830 engines in zero-time condition in exchange for Euroworld’s release to Blakey of twenty-four 1830 engines. (Plaintiff’s Trial Exhibit 4.) (T. 22) Within a couple of days thereafter, Blakey received the remaining engines. (Plaintiff’s Trial Exhibit 10, Blakey Depo. p. 23.)

6. Blakey contends that his agreement with Euroworld was oral and was based solely upon representations made by representatives of Euroworld that Euroworld would ship to Blakey twenty-four engines which would have no premature failures, were capable of overhaul, and were otherwise normal run-out engines. Blakey further contends that the condition of the engines delivered was not as represented. (Pre-Trial Stipulation, p. 5.)

7. Each of the twenty-four engines was delivered by Euroworld to Blakey’s place of business in a sealed canister. (T. 80)

8. Robert Craig, Euroworld’s employee, submitted testimony at trial that Blakey knew that neither he nor anyone else at Euroworld had inspected the engines at the time of entering into the transaction with him. (T. 237) Moreover, Craig testified that he advised Blakey that paperwork received by Euroworld with the engines from the Moroccan government reflected that some of the engines were in normal run-out condition and that others had specific problems. Craig testified that Blakey knew that he was relying solely upon these documents when he conveyed to Blakey information pertaining to the condition of the engines. (T. 237) Blakey admits receiving this information. (T. 300)

9. At trial, Blakey testified that he never inspected or asked to inspect the twenty-four engines that he was receiving from Euroworld prior to the time they were delivered to his premises. (T. 81) Blakey further testified that he did not ask to review the engines’ logbooks, which typically reflect the condition of the engines, since he believed the engines were too old to still have logbooks. (T-299)

10. Blakey had the opportunity to inspect the engines upon delivery. Blakey admitted that by removing every lid off each of the canisters he was able to substantiate the condition of each of these engines. (Plaintiffs’ Exhibit 10, Blakey Depo. p. 28.) (T. 311) Blakey further testified at trial that he did not have to remove the engines from the canisters to ascertain their condition. (T. 310) Moreover, Blakey admitted at trial that a routine preliminary inspection that would show damage to the engine would only have taken ten minutes. (T-304)

11. Although Euroworld delivered the engines to Blakey as agreed in early October 1979, Blakey did not inspect the engines until February 8, 1980. Blakey testified at trial that he inspected the engines in late October 1979. (T. 310) However, this testimony is inconsistent with his earlier testimony in deposition of September 7, 1980. Blakey testified in his deposition that he first inspected the engines when he started to overhaul the first engine which he was to deliver to Euroworld and his work order would indicate the date. (T. 312) Subsequent to Blakey’s deposition, the work order was provided to Euroworld and was introduced at trial as Plaintiff’s Exhibit 5. (T. 36) That work order indicates that Blakey did not begin to overhaul the first engine until February 8, 1980. (T. 322) Accordingly, it is evident from his deposition and the work order produced by Blakey prior to trial that he waited four months before inspecting the engines that he had received.

12. Euroworld’s president, David Tallichet, testified at trial that in February 1980 he and Robert Nightengale, a representative of Euroworld, met with Blakey at his place of business for the sole purpose of trying to determine a delivery schedule for the eight engines, as Blakey had not yet delivered any engines in accordance with the October 1, 1979, agreement. (T. 28) Specifically, the meeting took place on February 13, 1980. (T. 189) At that meeting, Blakey agreed to supply Euroworld with one engine per month. (T. 29)

13. Both David Tallichet and Robert Nightengale submitted testimony that Blakey never complained about the condition of the 1830 engines at the February 1980 meeting. (T. 31, T. 63, T. 192)

14. Blakey has delivered to Euroworld only two zero-time 1830 engines. On April 16, 1980, Blakey delivered the first overhauled engine to Euroworld. (Plaintiff’s Trial Exhibit 5.) (T. 36) Thereafter, on July 2, 1980, Blakey delivered the second overhauled engine to Euroworld. (Plaintiff’s Trial Exhibit 6.) (T. 36)

15. After delivery of the second engine, Blakey refused and failed to provide any further zero-time engines to Euroworld, and notified Euroworld that he did not like the deal and was not going to delivery any more engines. (T. 31)

16. On October 10, 1980, Euroworld’s representative, John F. Hoover, sent a letter to Blakey and demanded delivery of the remaining engines promised. (Plaintiff’s Trial Exhibit 7.) (T. 38)

17. In November 1980, Euroworld received a letter dated November 11, 1980, from Blakey’s attorney, Louis Vernell, advising that Blakey would not deliver the remaining six engines still due and demanding payment for overhaul of the two engines, previously delivered. (Defendant’s Exhibit 3.) (T. 32)

18. Blakey is in possession of the remaining twenty-two 1830 engines delivered by Euroworld. Blakey has overhauled one of these engines. Of the remaining twenty-one engines, approximately twelve are still in canisters and the rest are disassembled and commingled in boxes. Blakey testified that there is no way he knows of identifying which pieces came out of a particular canister. (T. 326)

19. Euroworld’s expert, Raymond Harrott, who has been in the engine overhaul business for forty-two years, presented testimony at trial that the value in 1980 of a zero-time 1830 engine was $20,000 outright sale. (PT. 179, T. 339)

20. Where any finding of fact, in whole or in part, can be deemed a conclusion of law, it shall. Where any conclusion of law, in whole or in part, can be deemed a finding of fact, it shall.

Conclusion of Law

1. This Court’s diversity jurisdiction is properly invoked, in accordance with 28 U.S.C. 1332(a), as the plaintiff, Euroworld of California, Inc., and the defendant, Rudy Blakey, are citizens of different states.

2. Plaintiff, Euroworld, agreed to provide defendant, Blakey, with twenty-four 1830 engines in exchange for Blakey’s return to Euroworld of eight overhauled “zero-time” engines pursuant to a written agreement dated October 1, 1979. This sale or trade-out agreement is governed by Chapter 672 of the Florida Statutes, the Uniform Commercial Code-Sales.

3. The written agreement, dated October 1, 1979, constitutes an enforceable contract.

4. Plaintiff, Euroworld, did not expressly warrant the condition of the twenty-four 1830 engines. Under the code, § 672.313, express warranties can only be created as follows:

(a) Any information of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain____
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the. description.
(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the model.

No fact or promise was made by Euro-world’s representative, Robert Craig, to Blakey as to the condition of the engines. Rather, Robert Craig testified that he informed Blakey that neither he nor anyone else at Euroworld had inspected the engines. Craig further testified that he advised Blakey what certain documents received by Euroworld, along with the engines, reflected as to the conditions of the engines. At most, the information related to Blakey by Craig constituted an opinion based on document, which does not constitute an express warranty under § 672.313. See, Royal Business Machines v. Lorraine Cory., 30 U.C.C.Rptr. 462, 633 F.2d 34 (CA 7, 1980), at p. 44; Carter Hawley Hale Stores, Inc. v. Conley, 372 So.2d 965 (3d D.C.A.1979); Lovington Cattle Feeders v. Abbott, 33 U.C.C.Rptr. 522, 97 N.M. 564, 642 P.2d 167 (1982). In Royal Business Machines, the Court stated that the decisive test for whether a given representation is a warranty or merely an expression of the seller’s opinion is whether the seller asserts a fact of which the buyer is ignorant or states an opinion or judgment on a matter of which the seller has no special knowledge and on which the buyer may be expected also to have an opinion and to exercise his judgment. 633 F.2d at 41. In the instant case, the buyer, Blakey, has had twenty-five years’ experience in the engine overhaul industry and is certainly more knowledgeable than Euroworld as to the probability that twenty-four aircraft engines from the Moroccan government would be in normal run-out condition. Blakey even testified that he did not ask for the logbooks because he believed the engines were too old to still have them. (T. 299) Accordingly, and for the above-stated reasons, no express warranty as to the condition of the engines was made by Euro-world to Blakey.

5. Euroworld complied with all the conditions to the agreement' between itself and Blakey by delivering to Blakey twenty-four 1830 engines.

6. Blakey accepted the engines delivered by Euroworld and failed to effectively revoke that acceptance. Further, Blakey did not effectively reject the engines. Accordingly, assuming that an express warranty as to the condition of the goods was provided by Euroworld’s representative, Blakey waived that defense under Florida law.

7. Under the code, § 672.606, acceptance of goods occurs when the buyer, after a reasonable opportunity to inspect the goods, signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity. Blakey’s delay in inspecting the engines and advising Euroworld of any problems constituted an acceptance of said engines under the Uniform Commercial Code. First, Blakey had the opportunity to inspect the engines upon delivery and could have notified Euroworld of any problems. Rather, Blakey failed to inspect the engines until February 1980, four months after their delivery. Further, at the February 13, 1980, meeting with David Tallichet and Robert Nightengale, Blakey stated that he would be providing overhauled engines to Euroworld as originally agreed. It was not until the summer of 1980, after Blakey had already delivered to Euroworld two zero-time 1830 engines, that Blakey notified Euroworld that he would not deliver the remaining engines promised. This was nine months after Blakey entered into the written agreement with Euroworld. Accordingly, Blakey’s delivery of two zero-time engines to Euroworld, compounded by the nine-month delay before notifying Euro-world of any problems with the engines, signified that Blakey accepted the engines and would fulfill his obligations pursuant to the agreement.

8. Blakey failed to make an effective rejection of the engines as required under the code, § 672.602, by waiting until the summer of 1980 to advise Euroworld of any problems with said engines. His failure to make an effective rejection also constituted acceptance of the goods. See, Stephens Industry, Inc. v. American Express Company, 471 S.W.2d 501 (Mo.Ct.App.1971); Republic Corporation v. Procedyne Corporation, 401 F.Supp. 1061 (S.D.N.Y.1975); Michael M. Berlin & Co. v. Whinng, 5 U.C.C.Rptr. 357 (1968).

9. Blakey failed to make an effective revocation of his acceptance of the engines. Under the Code, Blakey was required to revoke his acceptance within a reasonable time after he discovered grounds for such revocation. § 672.608 states:

Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the grounds for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.

Blakey’s delay until the summer of 1980 to notify Euroworld that he would not accept the agreement was not reasonable and should preclude revocation under the Uniform Commercial Code.

10. Blakey has breached his agreement with Euroworld by delivering only two of the eight zero-time 1830 engines he promised. Accordingly, Euroworld is entitled to recover the value of the six “zero time” engines that Blakey has failed to deliver, in accordance with the parties’ agreement of October 1, 1979.

11. The value of a zero-time 1830 engine in 1980 was $20,000.

THEREFORE, based upon the above findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure, this Court does hereby:

ORDER and ADJUDGE that the plaintiff, EUROWORLD OF CALIFORNIA, INC., shall recover from the defendant, RUDY BLAKEY, $120,000.00, which represents the fair market value of six zero-time 1830 engines in 1980, together with interest thereon as provided by law. This Court does further:

ORDER and ADJUDGE that the plaintiff, EUROWORLD OF CALIFORNIA, INC., shall submit within ten (10) days from the date of this Order, an affidavit setting forth the costs of this action for this Court’s review.


author: MYRON H. THOMPSON, District Judge.

text:
    Nelson J. DAVIS, Plaintiff, v. ALALBAMA STATE UNIVERSITY, et al., Defendants.
    Civ. A. No. 84-T-1090-N.
    United States District Court, M.D. Alabama, N.D.
    June 25, 1985.

      Kenneth L. Thomas, Massey, Means & Thomas, Montgomery, Ala., for plaintiff.
    Solomon S. Seay, Jr., Montgomery, Ala., for defendants.
   MEMORANDUM OPINION

MYRON H. THOMPSON, District Judge.

Plaintiff Nelson J. Davis has brought this lawsuit pursuant to 42 U.S.C.A. § 1983 against defendants Alabama State University, its president and its Board of Trustees, claiming that the university discharged him in violation of “procedural” due process guaranteed by the fourteenth amendment to the U.S. Constitution. Based on the evidence presented at a non-jury trial, the court finds that Davis’s complaint has merit in part and that appropriate relief is warranted.

I.

In 1979, Davis began working at Alabama State University as an academic ad-visor at the university’s Academic Advisement Center. Since Davis’s duties did not involve teaching, the university designated him a “nonacademic” employee with rights and responsibilities set forth in the Nonacademic Staff Handbook.

In early 1984, several university officials, including Davis’s supervisor at the center, recommended that Davis be dismissed for alleged acts of insubordination occurring in January 1984. In response, the university initiated discharge proceedings against Davis pursuant to the Nonacademic Staff Handbook, which sets forth the procedures for dismissal. Employing these procedures, Davis requested and received a hearing before the Committee for Nonacademic Personnel, over which the university’s personnel director presided. Throughout the proceedings, Davis was represented by retained counsel.

Before the hearing, the university informed Davis of witnesses it expected to testify, and granted his request that witnesses be subpoenaed in his behalf. However, the personnel director informed counsel for both Davis and the university that the committee would consider testimony from only those witnesses who had knowledge regarding the alleged acts occurring in January 1984, and would not consider evidence of events prior to these acts.

The committee found Davis guilty of the alleged acts; however, it recommended that he not receive the maximum sanction, presumably dismissal, since it had considered “only a small portion of what seems to be a larger problem.” According to the procedures, the committee’s findings as to the offenses charged and nonbinding recommendation for sanction went to the university’s president, defendant Leon Howard, for his decision.

Besides the committee’s report, Howard received the recommendation from the personnel director that Davis be dismissed. Howard also considered information in Davis’s personnel file, including reports of past allegations of insubordination by Davis. Howard dismissed Davis.

Davis appealed his dismissal to the Board of Trustees. While the president has the authority to dismiss employees, the handbook provides for appeal to the Board. The Board has neglected or refused to respond to Davis’s appeal.

II.

As recently reaffirmed by the U.S. Supreme Court, the due process clause of the fourteenth amendment guarantees persons with a property interest in their employment certain procedures before they may be dismissed. Cleveland Board of Education v. Loudermill, — U.S. ---, ---, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985). Here, all parties agree that Davis had a property interest in his employment guaranteeing such procedures. They differ, however, on whether Davis received all the procedures required by the due process clause.

Davis contends as follows: first, that he should have been allowed to present testimony from the witnesses subpoenaed for him for the hearing; second, that President Howard should not have considered information in Davis’s personnel file or, if he did, that Davis should have had a chance to respond to such information; and third, that the Board of Trustees should have acted on his appeal. The court considers these contentions in turn.

A.

The essence of due process is “notice and [an] opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-657, 94 L.Ed. 865 (1950). Here, Davis received notice of allegations of insubordination occurring in January 1984. Davis contends that he was nevertheless denied due process because he was prohibited from presenting testimony from the witnesses he had subpoenaed concerning his past performance. This evidence apparently was intended to address what sanction the university might impose on Davis, not whether he committed the acts alleged. As already stated, Davis was not allowed to present the evidence because the presiding officer limited the committee’s consideration to evidence regarding the present allegations of insubordination.

“Ordinarily, the right to present evidence is basic to a fair hearing.” Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974). Indeed, the right to present witnesses and documentary evidence is “[c]hief among the Due Process minima.” Ponte v. Real, --- U.S. ---, 105 S.Ct. 2192, 2195, 85 L.Ed.2d 553 (1985). However, this right is not unbridled, but is circumscribed by “the necessary discretion to keep the hearing within reasonable limits.” Wolff, 418 U.S. at 566, 94 S.Ct. at 2980. Furthermore, in nonjudicial, administrative settings, broad discretion must be afforded.

Here, the personnel director, who presided over Davis’s hearing, determined that the hearing committee’s findings as to the charges and recommendation for punishment would be based solely on evidence from the period of the alleged acts of insubordination. Both Davis and the university were subject to this limitation. This court cannot say that this limitation was unreasonable and that the personnel director abused his broad discretion. Thus, the limitation did not violate Davis’s right to procedural due process.

B.

Davis’s second contention is that Howard should not have considered information in Davis’s personnel file in deciding to dismiss him, unless Howard gave Davis an opportunity to respond to such information. This contention has merit.

In Cleveland Board of Education v. Loudermill, the Court said that “[t]he opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement.” — U.S. at ---, 105 S.Ct. at 1495. This is so whether the issue is «/discipline is appropriate or what discipline is appropriate. — U.S. at ---, 105 S.Ct. at 1494. Here, the evidence reflects and the court finds that, in deciding to dismiss Davis, Howard considered information in Davis’s personnel file relating to past allegations of insubordination. It is undisputed that Davis had no opportunity to respond to the information. Furthermore, he had no notice that Howard would consider it.

The past allegations of insubordination were, in part, what Davis had wanted the committee to consider, although it refused to do so. It is ironic that Howard then considered the allegations. It was also improper. While the committee could permissibly restrict the evidence, as it did, and Howard could then permissibly broaden it, once Howard did so, he had to notify Davis and give him a chance to respond. Howard did not afford Davis due process simply by considering the past allegations. What Davis wanted was not just that Howard consider them but that Davis have “an opportunity to present his side of the story.” — U.S. at ---, 105 S.Ct. at 1495. Howard denied Davis this opportunity.

Howard testified at trial that he would have dismissed Davis even had he not considered information in his personnel file. Howard would thus appear to contend that any violation of due process was harmless. This is not so. The court has not found that Howard should not have considered the information in the personnel file. Although Howard could have chosen to rely only on the evidence presented at the hearing, once he decided to consider other evidence, he had to notify Davis and allow him to respond.

Indeed, Davis’s employment record appears most relevant to what sanction Davis might receive. Such evidence would put Davis’s acts of January 1984 in the context of, among other things, his overall job performance and his relations with fellow employees and other supervisors. As of yet, university officials have not had an opportunity to consider Davis’s sanction in light of such factors, as presented from all perspectives. Davis is entitled to appropriate relief in light of this violation of his right to procedural due process.

C.

Davis’s third contention is that the Board of Trustees should have acted on his appeal. Thus, the question for the court is whether the Board’s failure to act on Davis’s appeal violated the procedures guaranteed by the due process clause. Davis does not contend that such an appeal is constitutionally required under any circumstances, nor would such a contention appear tenable. Rather, he contends that appeal to the Board is constitutionally required here merely because the handbook provides for it.

Clearly, not all violations of state statutory or regulatory procedure “rise to the level of a constitutional deprivation.” Thompson v. Bass, 616 F.2d 1259, 1266 (5th Cir.), cert. denied sub nom. Thompson v. Turner, 449 U.S. 983, 101 S.Ct. 399, 66 L.Ed.2d 245 (1980). “[W]hen a statute only provides that certain procedural guidelines be followed in arriving at a decision, then there is no creation of a substantive interest protected by the Constitution.” Jean v. Nelson, 727 F.2d 957, 981 (11th Cir.1984), citing Hewitt v. Helms, 459 U.S. 460, 470, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983). Thus, appeal to the Board is not required simply because the handbook provides it. Rather, it is required if it is part of “what process is due” by the Constitution. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600 (1972).

What Davis’s third contention does is to mix “whether process is due” with “what process is due.” The Supreme Court has emphatically rejected just this concoction. Cleveland Board of Education v. Loudermill, — U.S. at ---, 105 S.Ct. at 1492-93. State law and other sources of protected interests do not determine the specific procedures required by the due process clause, but only whether such procedures are guaranteed. Id. The Constitution determines the specific procedures required, id., and Davis concedes that the Constitution does not guarantee appeal to the Board. The denial of an appeal to the Board did not violate Davis’s right to procedural due process.

The court notes that Davis does not allege and has not shown that the Board acted on other appeals while not acting on his. Such an allegation, whether phrased in due-process or equal-protection terms, would certainly have a different character from Davis’s present contention. See Zeigler v. Jackson, 638 F.2d 776 (5th Cir.1981) (Unit B).

III.

Davis seeks injunctive relief and damages, both compensatory and punitive.

In light of the violation found in Part 11(B) of this opinion, the court will enter an injunction requiring that Davis’s dismissal be reconsidered after affording him notice and an opportunity to respond, either in person or in writing, concerning all information considered in determining an appropriate sanction for him. However, whether Davis is entitled to reinstatement and more than nominal damages — that is compensatory damages, including backpay, and punitive damages — cannot be determined at this time. If, after reconsideration of Davis’s dismissal, it should appear that his dismissal was justified, Davis’s damages would be limited to those flowing from the procedural due process violation and not from his dismissal, Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), and Davis would not be entitled to reinstatement. Wilson v. Taylor, 658 F.2d 1021, 1033-35 (5th Cir.1981) (Unit B). However, if, after reconsideration of Davis’s dismissal, it should appear that dismissal was not justified, Davis may then be entitled to reinstatement and more in damages.

IV.

The defendants correctly observe that any relief afforded by the court must be circumscribed by the immunities they claim.

Defendants Alabama State University and its Board of Trustees argue that they are subject to neither injunctive relief nor damages because the eleventh amendment to the U.S. Constitution bars suit against them. The court agrees. Quite recently, the Eleventh Circuit Court of Appeals held that the eleventh amendment, which prohibits federal courts from entertaining suits against states and their agencies, barred suit against Alabama’s Troy State University. Harden v. Adams, 760 F.2d 1158 (11th Cir.1985). Alabama State University is identical to Troy State University in all relevant respects. Accordingly, Alabama State University and its Board of Trustees are due to be dismissed. See Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Harden, supra.

However, President Howard is sued in both his individual and official capacities. Howard contends that he is immune in his official capacity from any award of compensatory damages, including backpay, and punitive damages. The court agrees. Any award of damages against Howard in his official capacity would in substance have to come from the State of Alabama, and as such is barred by the eleventh amendment. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Harden, supra.

Howard also maintains that he is entitled to “qualified immunity” from any damages against him in his individual capacity. The Supreme Court has said that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Here, the court has found that Howard violated Davis’s constitutional right to due process by considering information against Davis without giving him notice and an opportunity to respond. The issue is whether this right was clearly established when Howard dismissed Davis.

In Cleveland Board of Education v. Loudermill, the Court said that the rule requiring “some kind of hearing” before dismissal “has been settled for some time now.” — U.S. at ---, 105 S.Ct. at 1493. The effect of Howard’s consideration of information without affording Davis notice and an opportunity to respond was to deny Davis any hearing whatsoever regarding his dismissal. It is beside the point that Davis had had a hearing before the committee, since this hearing focused on specific factual allegations and did not concern whether Davis should be dismissed. Howard considered and resolved Davis’s dismissal apart from the committee and without Davis’s participation. Howard reasonably should have known that this denied Davis due process. Thus, Howard is not entitled to qualified immunity;

Therefore, any injunctive relief will be against Howard in both his official and individual capacities, but any damages will be against Howard in his individual capacity only.

An appropriate judgment will be entered.

       Davis has not sued the board members separately, either in their individual or official capacities. Rather, he has used the board as an entity, which as such is but a part of the university and like the university is due to be dismissed under the eleventh amendment.