author: HAROLD A. ACKERMAN, District Judge.

text:
    The MAYOR AND BOARD OF ALDERMEN OF the TOWN OF BOONTON, a municipal corporation organized under the laws of the State of New Jersey and located herein, Plaintiff, v. DREW CHEMICAL CORPORATION, a corporation organized under the laws of the State of Delaware, with offices located in the State of New Jersey, Defendant/Third-Party Plaintiff, v. DOMENICO PEPE, Owner (1 to 100) a Generator (1 to 499), a Transporter (1 to 200) a fictitious name, Third Party Defendant.
    Civ. A. No. 83-4761.
    United States District Court, D. New Jersey.
    Nov. 15, 1985.

      Joseph J. Maraziti, Jr., Maraziti, Kalish & Gregory, Morristown, N.J., for plaintiff.
    Harry Jay Levin, c/o Drew Chemical Corp., Boonton, N.J., Edward F. Lamb, Robinson, Wayne, Levin, Riccio & LaSala, Newark, N.J., for Drew Chemical.
    John J. Genoble, Montville, N.J., for Domenico Pepe.
   OPINION

HAROLD A. ACKERMAN, District Judge.

This is an action by plaintiffs, the Mayor and Board of Alderman of the Town of Boonton, New Jersey, against the Drew Chemical Corporation, for damages pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq. (“CERCLA” or the Act) and state law. This matter is presently before me on defendant’s motion for summary judgment on plaintiff’s CERCLA claims and for dismissal of plaintiff’s pendent claims under state law. This motion was first before this court on June 24, 1985. At that time I ruled on some of defendant’s arguments, however a portion of defendant’s motion was continued to this date to permit plaintiff an opportunity to respond to two arguments raised by defendant for the first time in its reply brief to this court. In particular, the issues presently before this court are:

(1) whether a municipality, such as plaintiff, is a “state” for purposes of recovery under § 9607(a)(4)(A) or (C) of CERCLA and
(2) whether plaintiff can recover for response costs incurred prior to December 11, 1980, the effective date of CERCLA.

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall not be granted unless, drawing all reasonable inferences in favor of the nonmoving party, there are no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law. See Sames v. Gable, 732 F.2d 49, 51 (3d Cir.1984).

Viewing the facts in a light most favorable to plaintiff, the underlying facts here are as follows. Pepe Field is a 3.5 acre park located in Boonton. The property was acquired by Boonton in the early 1970’s from the Bentley Estate which had owned it for many years. The area had originally been low and swampy but, according to plaintiffs, due to arrangements between the Bentley Estate and Drew Chemical, Drew had dumped waste from its industrial operations in the field for many years. The dumping activity ceased some time in the 1940’s. See Video Taped Depositions of Padavano and Bentley, Affidavit of Ricky Prill, Exhibits E and F. Boonton has taken a variety of steps to assess and mitigate any threat to public health from contamination of Pepe Field. The field is closed to the public. Town police monitor the site. The Town has constructed and currently maintains an on-site treatment facility which treats subsurface drainage from the site prior to its discharge into a nearby gravel curtain drain by application of hydrogen peroxide to the drainage from the field. Town employees check the filtration facility on a daily basis. To date, the Town has expended nearly $40,000.00 on this effort alone. See Pr. 11 Affidavit.

Further, in order to determine the nature and extent of the threat to public health and to develop data on the waste deposits at the field, the Town engaged the services of Elson T. Killam Associates, Environmental and Hydraulic Engineers. Killam Associaties have taken subsurface waste samples and performed a variety of sophisticated tests on the samples obtained. It is unclear from the record exactly when the above described costs were incurred.

Pursuant to CERCLA, in December of 1982 the Environmental Protection Agency designated Pepe Field as a national priority toxic waste site for cleanup purposes. By letter dated May 23, 1983, the New Jersey Department of Environmental Protection (NJDEP) notified both parties to this action “that a site evaluation study must be conducted to determine the effect of the wastes buried in Pepe Field on the quality of the air, ground waters and surface waters in the area.” See Prill Aff. at Ex. A. After further describing the study in question, NJDEP reiterated that it “is requesting the Town of Boonton, as the present owner of the site, and Drew Chemical Corp., as the principal generator of wastes buried at the site, to jointly or singularly conduct this study.” Id. By letter dated June 24, 1983, the Town of Boonton notified Drew that it had “determined that the requested site evaluation study should be the sole responsibility of Drew ... [inasmuch as Drew was the generator of the wastes dumped over the years ... [and] because it places the burden of responsibility upon the party whose conduct created the problem ... [and who] is better positioned to identify and evaluate the characteristics of the wastes.” See Prill Aff. at Ex. B.

Efforts to resolve the issue of responsibility between the parties by negotiation failed and on December 9, 1983 the Town filed a formal claim letter with Drew, see Ex. C to Prill Affidavit, and filed the instant civil action. Count One seeks recovery of costs incurred by Boonton as a result of the pollution of Pepe Field under 42 U.S.C. § 9607(a)(4)(A) and (B). Count Two seeks damages for injury to natural resources pursuant to 42 U.S.C. § 9607(a)(4)(C). The remaining four counts seek relief under state law as noted supra.

The operative provision of CERCLA regarding liability states in pertinent part as follows:

Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section—
(1) the owner and operator of a vessel (otherwise subject to the jurisdiction of the United States) or a facility,
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances, and
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for—
(A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan;
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; and
(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss. resulting from such a release.

42 U.S.C. § 9607(a). Subsection (f) of § 9607 further states that liability under § 9607(a)(4)(C) “shall be to the United States Government and to any state for natural resources within the state or belonging to, managed by, controlled by, or appertaining to such state____” 42 U.S.C. § 9607(f).

I turn now to the issues outlined supra, which remain to be decided by this court.

As to the first question, in support of its motion, defendant points to the language of § 9607(a)(4)(A) which imposes liability for “all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan.” Defendant further points to § 9607(f) which modifies § 9607(a)(4)(C) providing for liability for injury, destruction or loss of natural resources as follows:

In the case of an injury to, destruction of, or loss of natural resources under subparagraph (c) of subsection (a) of this section liability shall be to the United States Government and to any State for natural resources within the State or belonging to, managed by, controlled by, or appertaining to such state____

42 U.S.C. § 9607(f).

In arguing that the Town of Boonton is not the state for purposes of recovery under the above provisions of CERCLA, defendants contend that in the definitional section of the Act the terms, “United States” and “State” are defined as “the several states of the United States, the District of Columbia, the Commonwealth of Puerto Rico ... and any other territory or possession over which the United States has jurisdiction.” 42 U.S.C. § 9601(27). In further support of its argument, defendant contends that because Congress specifically referred to “states or political subdivisions” in § 9604(d) of the Act, it must have intended to exclude municipalities wherever no reference to political subdivisions was made in the Act.

I am not persuaded by these arguments. First, as plaintiff correctly points out, the Act nowhere provides that the term “state” means the several states but instead specifically provides that the term “state” shall “include ” the entities listed in § 9601(27) (emphasis added). It is undisputed that:

A term whose statutory definition declares what it ‘includes’ is more susceptible to extension of meaning by construction than where the definition declares what a term ‘means.’ It has been said ‘the word includes is usually a term of enlargement, and not of limitation____ It, therefore, conveys the conclusion that there are other items includable, though not specifically enumerated____’

Singer, N., 24 Statutes and Statutory Construction § 47.07 (4th Ed. 1984) (citations omitted). See also, Pfizer Inc. v. Government of India, 434 U.S. 308, 312 n. 9, 98 S.Ct. 584, 587 n. 9, 54 L.Ed.2d 563 (1978); Federal Land Bank v. Bismarck Co., 314 U.S. 95, 99-100, 62 S.Ct. 1, 3-4, 86 L.Ed. 65 (1941); Highway & City Freight Drivers v. Gordon Transport Inc., 576 F.2d 1285, 1289 (8th Cir.), cert. denied, 439 U.S. 1002, 99 S.Ct. 612, 58 L.Ed.2d 678 (1978); United States v. Beneficial Corp., 492 F.Supp. 682, 684 (D.N.J.1980). The definitional section in question therefore explicitly contemplates an expansion of the illustrative list by the courts to the fullest extent where to do so would be consistent with the remedial intent of the Act. See generally, Winterrowd v. David Freedman and Co., Inc., 724 F.2d 823, 825 (9th Cir.1984).

Further, while § 9607(f) limits liability for loss of natural resources to the United States or a state “for natural resources within the state or belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the U.S. ... [or] any State or local government.” 42 U.S.C. § 9601(16) (emphasis added). It would be anomalous for this far reaching remedial statute to give states a cause of action for damages to natural resources owned by the State but for it to exclude cities from access to such a cause of action while expressly including resources owned by “local governments” within the scope of the protected subject of § 9607(a)(4)(C). As I have previously noted in my June 24 ruling, “CERCLA should be given a broad and liberal construction.” See, e.g., United States v. Reilly Tar & Chemical Corp., 546 F.Supp. 1100, 1112 (D.Minn.1982).

In this regard, I note the references to “local governments,” 126 Cong.Rec. 26,358 (1980), see also id. at 26,766, cleanup and containment by “States and the onsite people” with “the capacity and inclination to cleanup and contain,” id. at 26,345, and the responsibility of the Nation as a whole for clean up, id. at 26,346, in the floor debates on the House bill.

Finally, in construing the definition of “state” in CERCLA to encompass governmental subdivisions of the state for purposes of liability and standing under §§ 9607(a)(4)(A) and (C) as modified by § 9607(f), I note that Congress has frequently defined “state” broadly to mean the fifty states and a variety of other governmental subdivisions and entities such as municipalities. See, e.g., Armed Forces Act of 1959, 10 U.S.C. § 2232(1) (1983), Consumer Credit Protection Act, 15 U.S.C. § 1692a(8) and § 1693a(10) (1982), Natural Gas Policy Act of 1978, 15 U.S.C. § 3316(b)(2)(C)(i) (1982), Organized Crime Control (RICO) Act of 1970, 18 U.S.C. § 1961(2) (1984), Florida Indian Land Claims Settlement Act of 1982, 25 U.S.C. § 1742(2) (Supp.1985), Internal Revenue Code of 1954, as amended, 26 U.S.C. § 457(d)(1) (Supp.1985), Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1144(c)(2) (1975), Act of August 31, 1954, Pub.L. No. 83-738, 30 U.S.C. § 552 (1971), Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4601(2) (1983), Powerplant and Industrial Fuel Act of 1978, 42 U.S.C. § 8441(e)(4) (1983), Communications Act of 1934, as amended, 47 U.S.C. § 224(a)(3) (Supp.1985), Cable Communications Policy Act of 1984, 47 U.S.C. § 522(15) (Supp.1985), Motor Carrier Safety Act of 1984, 49 U.S.C. § 2503(10) (Supp. 1985), but see Intergovernmental Cooperation Act of 1970, 42 U.S.C. § 4762(3) (1983). While the statute in question does not define “state” to mean municipalities as well, it is reasonable to expand the illustrative list introduced by the word “includes” to encompass entities frequently explicitly within the meaning of the term “state” as legislatively defined.

For these reasons I am not persuaded that Congress intended to preclude cities from suing for damages to natural resourced owned by them. See generally, City of Philadelphia v. Stepan Chemical Co., 544 F.Supp. 1135, 1141-42 (E.D.Pa. 1982) (refusing to preclude suits by cities under other provisions of CERCLA). I therefore conclude that municipalities are within the scope of the entities Congress entrusted with standing both to recover costs for cleanup under § 9607(a)(4)(A) as well as to sue for damages for injury to, destruction of, or loss of natural resources under § 9607(a)(4)(C) of CERCLA. In short, municipalities are within the scope of the term “state” as used in the Act.

Alternatively, I note that § 9607(f) states that “[t]he President, or the authorized representative of any state, shall act on behalf of the public as trustee of such natural resources to recover for such damage.” 42 U.S.C. § 9607(f) (emphasis added). The Act does not define the term “authorized representative” and plaintiff reasons that state law may provide some guidance to a federal court seeking to determine whether a municipality could be construed as an authorized representative of the state under appropriate circumstances. Plaintiff cites to Art. 4, Sec. 7, par. 11 of the New Jersey Constitution requiring all laws respecting the powers of municipal corporations to be liberally construed in their favor and to New Jersey Home Rule Act, N.J.S.A. 40:42-1 at 4 stating that “all courts shall construe [its provisions] ... most favorably to municipalities it being the intention to give all municipalities to which this subtitle applies the fullest and most complete powers possible over the internal affairs of such municipalities for local self-government.” While I am not convinced that Congress intended state law to govern the question of who or what is an “authorized representative” under CERCLA, I find these state law provisions cited by plaintiff to be of some value in my determination in this regard. I note as well that Pepe Field, the subject of this lawsuit, is owned by the Town of Boonton and may, therefore, be considered a matter of local concern within the scope of the state statute cited supra. Finally, I note that in this case the facts reveal that all post CERCLA costs were clearly incurred by the Town acting on the direction of the NJDEP and thus, I find, as an authorized representative of the state to this extent.

On the basis of the foregoing, I find that either by liberally construing the language of CERCLA in light of its broad remedial purposes or by specifically construing § 9607(f) in light of state law giving municipalities broad powers, a municipality is a state or authorized representative thereof for purposes of invoking the provisions of CERCLA. I believe that such a construction of the Act is consistent with its purpose to encourage and facilitate the cleanup and treatment of hazardous wastes in order to protect and preserve natural resources and the public health.

I turn now to the question of what response costs may be recovered under CER-CLA. It is undisputed that the effective date of CERCLA was December 11, 1980. 42 U.S.C. § 9652(a). The question of the retroactivity of CERCLA has involved the courts in two issues: (1) does CERCLA provide liability for response cost incurred with regard to pre-CERCLA acts and (2) if so, does CERCLA provide for liability of costs incurred pre-CERCLA or only for costs incurred post-CERCLA albeit for preCERCLA acts, since the facts in this case indicate that all of the acts of dumping covered by CERCLA were performed prior to December 11, 1980. However, it appears that some of the response costs incurred by the Town of Boonton were incurred prior to that date. Both issues are therefore before this court.

As to the first, defendant does not dispute and courts have universally held that CERCLA provides liability for acts within its scope but prior to its effective date. See U.S. v. Shell Oil Co., 605 F.Supp. 1064, 15 Environmental Law Reporter 20337, 20340 (D.Colo.1985); U.S. v. Northeastern Pharmaceutical & Chemical Co., 579 F.Supp. 823, 839 (W.D.Mo. 1984) (and cases cited therein).

Courts have divided, however, over the question of whether CERCLA is retroactive to the extent that costs incurred prior to December 11, 1980, are recoverable under the Act. Compare Shell Oil, 605 F.Supp. 1064, 15 E.L.R. at 20340 (holding that pre-CERCLA costs are recoverable) with Northeastern Pharmaceutical, 579 F.Supp. at 843. Although I am cognizant that there is a presumption against retroactivity which may only be overridden if retroactivity “be ‘the unequivocal and inflexible import of the terms [of the statute], and the manifest intention of the legislature,’ ” U.S. v. Security Industrial Bank, 459 U.S. 70, 79, 103 S.Ct. 407, 412, 74 L.Ed.2d 235 (1983) quoting Union Pacific R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199, 34 S.Ct. 101, 102, 58 L.Ed. 179 (1913) (citations omitted), I am nevertheless persuaded that Congress intended all costs including those incurred before the effective date of the Act to be recoverable under CERCLA. I base my conclusion in this regard on the exhaustive analysis of this issue by Judge Carrigan in the Shell Oil case. Judge Carrigan concluded as I have, “that the unavoidably retroactive nature of CERCLA, and Congress’ decision in CERCLA to impose the cost of cleaning up hazardous waste sites on the responsible parties rather than on taxpayers, strongly indicate Congressional intent to hold responsible parties liable for pre-enactment government response costs.” Shell Oil, 605 F.Supp. 1064, 15 E.L.R. at 20340.

I agree with the Court in Shell Oil that where there is evidence that a statute was “rushed through a lame duck session of Congress,” see State of Ohio ex rel. Brown v. Georgeoff, 562 F.Supp. 1300, 1310 n. 12 (N.D.Ohio 1983), the directly conflicting verb tenses of the liability provision in effect “cancel each other” and ought not to be considered dispositive on the question of retroactivity. See Shell Oil, 605 F.Supp. 1064, 15 E.L.R. at 20340 discussing 42 U.S.C. § 9607(a)(4). I therefore do not believe that the case of Summers v. Skibbs A/S Myken, 191 F.Supp. 929, 930 (E.D.Pa.), aff'd per curiam, 296 F.2d 548 (3d Cir. 1961) is controlling on the issue before me.

Similarly, I am persuaded by Judge Carrigan’s analysis that the requirement in the Act that costs be consistent with the National Contingency Plan (NCP) in no way precludes a conclusion that the Act was intended to provide for recovery of preCERCLA costs incurred. Regardless of whether the original or revised NCP is utilized for this determination, I agree with Judge Carrigan that “nothing prevents ... recovery of costs later determined to be consistent with the NCP. The consistency requirement addresses the nature of the response action for which costs can be recovered, not' the timing of the action.” 605 F.Supp. 1064, 15 E.L.R. at 20340.

Further, I agree that “Congress implicitly authorized retroactive application of sections 107(a)(4)(A) and (B) by affirmatively limiting retroactive application of the third category of liability, damages to natural resources, section 107(a)(4)(C).”

It is true as Judge Carrigan notes that at least two courts have felt constrained to find against retroactivity on this point because of the absence of a clear affirmative statement in the Act. See Northeastern Pharmaceutical, 579 F.Supp. at 842; US. v. Wade, 577 F.Supp. 1326 (E.D.Pa.1983). However, as recently as 1983, as noted supra, the Supreme Court required only that the unequivocal and inflexible import of the statute and the manifest intention of Congress in favor of retroactivity be shown. Security Industrial, 459 U.S. at 79, 103 S.Ct. at 412. (citations omitted). There is no requirement that retroactivity be expressly provided for in the Act. Here, I find that the clear unequivocal thrust of CERCLA by its terms and by the legislative history discussed in the Shell Oil case, is to provide for retroactivity in all respects that do not offend basic constitutional principles of fairness and due process. No party has argued, nor do I find, any such principles offended by the retroactive application of CERCLA to costs incurred prior to the Act’s effective date. I therefore find that such response costs may be recovered by plaintiff herein.

In sum, I note that this court is not unaware of the importance of the issues raised herein and my heavy reliance on Judge Cardigan's opinion should not be construed as an abdication of the responsibility of this court to consider the issues raised anew. Instead, I have carefully reviewed the statute, the legislative history and the caselaw and, for the reasons set forth in the Shell Oil opinion and reiterated by this court supra, I have concluded that preCERCLA response costs are coverable and that they may be recovered by the plaintiff herein if all other issues of fact are resolved in plaintiff’s favor with the sole exception set forth in § 9607(f) regarding claims under § 9607(a)(4)(C).

The continued portion of defendant’s summary judgment motion is denied.

SUPPLEMENTAL ORDER

This matter having come before the Court on the defendant’s motion for summary judgment and argument having been heard and an oral opinion having been rendered on a continued portion of defendant’s motion on July 24, 1985;

It is on this 14th day of November, 1985;

ORDERED that the oral opinion rendered on July 24, 1985 shall be deemed superceded and amended by the opinion filed this date. Summary judgment is, as previously ordered, denied.


source: Caselaw Access Project

author: WILLIAM C. LEE, District Judge.

license: Public Domain

text:
    Kevin HEBAN and Norbert A. Heban, III, Plaintiffs, v. BFD, INC. d/b/a O’Sullivan’s Italian Pub, Defendant.
    Civ. No. F 84-328.
    United States District Court, N.D. Indiana, Fort Wayne Division.
    Nov. 18, 1985.

      Warren W. Wyneken; Wyneken & Kern, Fort Wayne, Ind., for plaintiffs.
    Michael C. Cook and Julie L. Michaelis; Wooden, McLaughlin & Sterner, Indianapolis, Ind., Daniel K. Leininger; Burt, Blee, Hawk & Sutton, Fort Wayne, Ind., for defendant.
   ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court regarding the Motion in Limine filed by defendant BFD, Inc. on October 28, 1985, with particular reference to paragraph 4” of said motion which was taken under advisement at the time of the hearing on said motion held on October 29, 1985. On November 1, 1985, plaintiffs filed their response to paragraph 4 of defendant’s said motion in limine. On November 13, 1985, defendant filed its reply to plaintiff’s said^response to its motion in limine.

By paragraph 4 of its motion, defendant seeks to preclude plaintiffs from introducing evidence that they were “subjected to any abuses, mistreatment, inconvenience, or other injurious acts during Jheir incarceration subsequent to the incident in question or any evidence as to the substance, kind, nature or description of any such alleged abuses, mistreatment, inconvenience or other injurious action.”

In Duckwall v. Davis, 194 Ind. 670, 142 N.E. 113 (1924), the Indiana Supreme Court reversed the trial court’s judgment on a jury verdict in a malicious prosecution action on the grounds that the trial court had improperly instructed the jury that they could consider the “discomfort inflicted on his person” in the “humiliation endured by him while under arrest” in awarding damages. Id. at 114. The court stated that in the absence of a showing that the defendant procured or induced the officers to mistreat the plaintiff, or had reason to anticipate that the plaintiff would suffer from violations of law on the part of the officers, the plaintiff’s treatment while in custody was not a proper element of damages.

While one who institutes a prosecution maliciously and without probable cause is clearly liable for all consequences of his act which may be expected in the ordinary course to result therefrom, he is not bound to anticipate that sworn officers of the law will be guilty of criminal offenses in violation of their official duty while the person so prosecuted is in their custody.

Id. at 117.

The Indiana Supreme Court’s opinion in Boaz v. Tate, 43 Ind. 60 (1873), also support the defendant’s position. The court in Boaz reversed the judgment of the trial court entered on the jury’s verdict for the plaintiff in an action for malicious prosecution and false arrest. One of the issues addressed by the court was the liability of the arresting officers and the jailer for each other’s wrongful acts. The court stated:

If there was a conspiracy between them or any two of them, each of them engaged in the conspiracy is liable for the acts of the other, done in pursuance of the conspiracy. So each is liable for acts in which he participated. If the police officers arrested the appellee and brought him to the jail, and then delivered him to the jailer as a prisoner, informing him of the arrest for a criminal offence [sic] committed in their view, by receiving him as a jailer, he did not thereby become liable for their prior wrongful or oppressive acts. And if the jailer unnecessarily put him into a filthy place, or otherwise thereafter, whilst holding him in custody, exceeded his authority, the police officers did not become liable with the jailer, unless they advised or in some manner participated in such oppression or excess of authority.

Id. at 73-74.

The plaintiffs contend that the decision of the Indiana Court of Appeals in Matovina v. Hult, 125 Ind.App. 236, 123 N.E.2d 893 (1955), also cited by this court at the hearing on October 29, 1985, supports the position that damages for the alleged mistreatment of the plaintiffs during their incarceration are recoverable. To the contrary, the court’s decision in Matovina is consistent with the Indiana Supreme Court’s decisions in Boaz and Duckwall and supports defendant’s position.

In Matovina, the court affirmed the trial court’s judgment entered on the jury’s verdict against the defendant in an action for false imprisonment. The primary issue addressed by the court was whether the statute of limitations began to run at the time the defendants, Gary police officers, transferred the plaintiff’s custody, after holding him for five days without a warrant or affidavit, to the Sheriff at the Crown Point jail. The court held the statute did not begin to run until the plaintiff was released by the Sheriff of Crown Point. The court stated:

The law seems to be well established that, as a general rule, all those who, by direct act or indirect procurement, personally participate in or proximately cause the unlawful restraint or detention are liable therefor as joint tort-feasors, jointly and severally, regardless of the degree or extent of the individual activities, and each is so liable although he did not know that the detention was illegal in its inception.

Id. 123 N.E.2d at 898.

The plaintiffs contend that the above quoted general rule was stated by the court in support of its holding concerning the award of damages for the mistreatment suffered by the' plaintiff while incarcerated in Gary. However, as it appears in the opinion, the rule was stated in support of the court’s holding concerning the statute of limitations.

The court did not directly address the issue of whether the damages were recoverable.

Indeed, it does not appear from the Matovina court’s opinion that the defendants argued on appeal that damages were not recoverable based on Duckwell or otherwise. Obviously, if no assertion of error was based on the fact that such damages were awarded, the Matovina court would have no occasion to rule on the issue defendant here raises. The Matovina court considered only whether the damages awarded by the jury were excessive and held that they were sustained by sufficient evidence. The evidence cited by the court included proof of the mistreatment of the plaintiff by the defendants. The award of damages in Matovina was proper under the Indiana Supreme Court’s decisions in Boaz and Duckwell, because the plaintiff proved that the defendants participated in the abuses he suffered while being held in the Gary jail.

The plaintiffs contend that the Indiana Court of Appeals adopted the statement by the court in Matovina concerning the plaintiff’s recovery of damages in Brickman v. Robertson Brothers Department Store, 136 Ind.App. 467, 202 N.E.2d 583 (1964). The court in Brickman did cite Matovina for the general rule that “ ‘all those who, by direct act or indirect procurement, personally participate in or proximately cause the unlawful restraint or detention are liable therefor as joint tort-feasors, jointly and severally, regardless of the degree or extent of the individual activity, and each is so liable, although he did not know that the detention was illegal at the inception.’ ” Id. at 586. However, the decision in Brick-man did not involve an action for false imprisonment in which the plaintiff was arrested or incarcerated, and certainly did not involve any alleged mistreatment while the plaintiff was being held in jail.

It is clear to this court that in light of the above discussion, the plaintiffs in this action would not be able to recover against this defendant for any claimed damages resulting from abuse or mistreatment while incarcerated absent a showing that the defendant procured or induced the mistreatment or had reason to anticipate that the plaintiffs would suffer from mistreatment at the hands of their jailers. Absent such a showing, any such evidence would be highly prejudicial to the defendant and, having no probative value, should be excluded.

Accordingly, defendant’s motion in limine filed October 28, 1985, is GRANTED with respect to paragraph number 4. With respect to the matters set forth in said paragraph, the plaintiffs shall (a) refrain from making any motion or interrogation or other statement, whether in voir dire examination, opening statements, or in eliciting answers from witnesses, directly or indirectly, in any manner whatsoever, or from offering any exhibits for introduction into evidence, concerning any of the matters set forth in said paragraph, without first approaching the bench and obtaining a ruling from the court outside the presence and hearing of the prospective jurors and jurors ultimately selected in this case and (b) advise any and all witnesses which plaintiffs’ counsel intends to call or calls to testify on plaintiffs’ behalf of the court’s ruling with respect to this motion.


author: NEAHER, District Judge.

text:
    Robert MARTINDELL, Plaintiff, v. NEWS GROUP PUBLICATIONS, INC., Defendant. Robert MARTINDELL, Charles Verderosa, John Mandrachia, Bernard Leventhal, John Goncharuk, Richard Carberry, Jack Scaccia, Richard Dennis, Maurice Fox, Charles Flugger, Manny Zuccaro, Joe Posa, Clifford Rosenberg, Francine Fuhrmann, James Eythe, and Joseph Sharnow, Plaintiffs, v. NEWS GROUP PUBLICATIONS, INC., Defendant.

    Nos. 79 CY 2723, 80 CV 107 (ERN).
    United States District Court, E.D. New York.
    Nov. 18, 1985.

      Sandback & Birnbaum, Mineóla by William Sandback, for plaintiffs.
    Squadron, Ellenoff, Plesent, & Lehrer, New York City by Neal Goldman, Stuart Bondell, for defendant.

      . Since the Court’s prior decision, it appears that News Group Publications, Inc. remains the sole defendant.

   MEMORANDUM OF DECISION AND ORDER

NEAHER, District Judge.

This is the second round of a controversy between News Group Publications, Inc., publisher of the New York Post (“the Post”), and a group of retail distributors (hereinafter “plaintiffs”) who undertook home delivery (by carrier boys) of the Post in areas of Kings, Queens, Nassau, and Suffolk Counties formerly served by the defunct Long Island Press. In the first round the Court granted defendants’ motion in limine, ruling that on the facts then before it, the 60/40 price split, which applied if the suggested home delivery retail price of $1.25 were to be increased by the retailers, was not illegal price fixing. See Martindell v. News Group Publications, Inc., 580 F.Supp. 330 (E.D.N.Y.1984). The case is again before the Court upon the defendant Post’s motion to dismiss pursuant to Fed.R.Civ.P. 41(b). After hearing plaintiffs’ evidence contra dismissal and reviewing the exhibits, the following constitutes the Court’s findings and conclusions pursuant to Fed.R.Civ.P. 52(a).

FINDINGS OF FACT

Ten of the plaintiff retail dealers appeared and testified in opposition to the Post’s motion, and an eleventh, Clifford Rosenberg, gave his testimony by deposition. The remaining seven plaintiffs — including Robert Martindell who initiated the action — failed to appear. Essentially, the plaintiffs who appeared welcomed the efforts of the Post to replace the Long Island Press in an area already served by the New York Daily News and the New York Times, but disagreed with and resisted the Post's pricing suggestions designed to attract subscribers for home delivery and increase its circulation as against its better known competitors.

All the plaintiffs who appeared had many years of experience delivering the Long Island Press and were well aware of the problems which caused that paper to fold. All readily acknowledged that had the Post not taken over, their delivery routes would probably have been worthless. Their apparent leader was Richard Dennis, who testified that he was formerly employed by the Long Island Press in purchasing franchise areas until the Post took over, and had his own franchise routes embracing some 2,360 customers on the side. According to Dennis, when the Post took over in March 1979 he became acting section head supervising the franchised dealers. This arrangement was at the direction of Sieg Friedler, who had been a circulation manager for the Long Island Press, and continued until 1981. Dennis received no salary, deriving his income from his own franchise routes.

Following the practice of the Long Island Press, the Post required Dennis and the other retail dealers to enter into a “News Dealer Agreement.” see Def.’s Exh. D-l, which Dennis and the others signed in or about May 1977. The agreement provided that the Post would designate a distributor who would sell and deliver the newspapers to the news dealer “at such rates as shall be agreed upon, from time to time, between the Distributor and the News Dealer.” Id. There were three such distributors, whose names appeared in the caption, viz., Crescent News Distributors, Woodhaven News Company and Long Island News Corp. Woodhaven has since gone out of business and Crescent has been merged into Long Island News Corp. Moreover, effective October 30, 1978, the Post undertook to sell the newspaper directly to the retail dealers, although the distributors would “continue to deliver the newspaper [in bulk to the dealers] and collect the payments due as agents for the New York Post Corporation.” Def.’s Exhs. A and B.

In an effort to attract former Long Island Press subscribers, the Post in March 1977 initially announced a 75$ price for six days home delivery. This was half of the daily newstand price of 25c a copy, i.e., $1.50 for the week. From the 75$ price the retail dealers received 60$ a copy and the home delivery carriers 15$. That promotional effort lasted until May 1978 when the Post increased the home delivery price to $1.00, still one-third less than the newsstand price. Def.’s Exh. C. At that juncture, Dennis, Clifford Rosenberg and some of the other plaintiffs decided to add a service charge to the Post’s advertised price. Dennis charged home subscribers $1.10 a week, and Rosenberg raised his to $1.15, accompanied by a “NEW YORK POST NEWSLETTER” plaintiff Posa had composed, which stated that it would aid the Post “to continue to print a bigger and better paper.” Exh. 8 to deposition of Clifford Rosenberg.

The Post did not sponsor the RosenbergPosa letter; however, on October 30, 1978 it notified all dealers in Queens, Brooklyn, Staten Island and Westchester, Nassau and Suffolk Counties that it would sell the Post directly to the dealers, although the distributors would continue to deliver the newspapers in bulk to the dealers and collect payments due as agents for the New York Post Corporation. Def.’s Exhs. A and B. In the same notices, dealers were advised that “the suggested retail price” for weekday home delivery would be $1.25 and $.35 for the Sunday issue, and that the dealers would be charged $.77 for the weekday issues and $.25 for the Sunday issue, plus 60% of the total price in excess of $1.25 charged by the dealer for the weekday issues. Def.’s Exhs. A and B. The legality of that pricing formula was upheld by this Court in the prior in limine proceeding. 580 F.Supp. at 330-31. Dennis, Rosenberg and other plaintiffs continued to increase their home delivery prices above the Post’s suggested prices, with the result that a number of customers complained to the Post that they were being overcharged and cancelled their subscriptions. Dennis testified that his circulation dropped from 1,743 newspapers to 1,375 after he raised his price to $1.40 in October 1978. In March 1980, when the Post had raised its home delivery price to $1.65, Dennis raised his price to $1.80, with the result that his circulation further decreased to 555, although a portion may have been due to his sale of some 300 customers to another dealer. In February 1981 he had only 480 customers. The Post did not renew his contract in May 1981, notifying him that he was in violation of his dealer agreement because he was also distributing the “Tonite” edition of the New York Daily News.

Rosenberg testified that when he started with the Post in March 1977 he had 900 to 1,000 customers but lost some 200 to 300 by 1979 when he was terminated. He also complained of pressure from Sieg Friedler, who said Rosenberg might be terminated if he did not drop the service charge. However, he continued to receive delivery of the Post even though he had suffered a serious accident in 1978 which required that he turn over active charge of distribution to his teen-age son. Eventually, Rosenberg’s annual contract was not renewed in May 1979. By that time, however, Rosenberg had turned his attention to a new business, selling pretzels to schools in his area.

Plaintiff John Goncharuk distributed the Long Island Press in Levittown, East Meadow, and North Bellmore in Nassau County. He commenced delivery of the Post after the last day of Press publication and was told at a general meeting, where section heads of the Post and Press were present, to charge $.75. There was no discussion of how long this price would last nor mention of changing it. In May 1977 he signed a news dealer contract with the Post. Thereafter, he agreed to charge the suggested price because he was warned that he would lose his district and subsidy if he did not. Over time, circulation declined, which resulted in a cut in the subsidy-

In 1982 Goncharuk raised his price to $2.40 for about 100 customers on a motor route and lost a few customers. There were threats from the Post, with which he is still under contract, to drop the price. Undoubtedly, to discredit this point, Goncharuk was shown Defendant’s Exh. UU, a form sent by the Circulation Department to customers who have discontinued service. Apart from printed information relating to the discontinuance, the lower left hand corner bears the following in a red ink stamp,

“HOME DELIVERY STILL ONLY $1.65 (SUGGESTED PRICE).”

Plaintiff Maurice Fox had been a circulation manager for the Press, operating under a franchise agreement that covered 1700 home subscribers. He was told that the contract with the Post was similar to the contract he had had with the Press. He thought the $.75 introductory price was a bad idea but Friedler told him to charge that price, which he did, or he would have no franchise. When the suggested price went to $1.00, Friedler told him that if he charged $1.10, he would have no contract. As it turned out, Fox raised his price to $1.10 and the Post raised the suggested price to $1.25. At this juncture, he claims the Post agreed to compensate him for any loss of customers and also provided telephone and promotional support. His contract was not renewed in 1981.

Cross-examination disclosed a contradiction between Fox’s in-court testimony that he had told the Post’s representatives he wanted to charge more and his deposition testimony that he had not done so. When the suggested price rose to $1.00, he admitted that he charged $1.10, resulting in an immediate loss of circulation, and that he had spoken with Dennis who also charged $1.10. When the price rose to $1.25 and Fox charged more, defendant Noonan assertedly informed him that there were no phone orders because he was charging a higher price. Fox’s termination occurred by letter of May 5, 1981, in which Frank Sherman, the Post’s Home Delivery manager, stated that Fox was in breach of the news dealer agreement because he was also delivering the New York Daily News. The letter also requested payment of arrearages for newspapers delivered since April 9, 1981. Fox never paid any money under the 60/40 system, nor any part of this demand, nor for any papers he received after he had received the termination letter. Later, he met with Post representatives and claims they agreed that $7,000 was due. As with the other plaintiffs, however, evidence of the requisite concerted action is lacking for both Fox and Goncharuk. Fox and Goncharuk charged what they pleased, and Fox invited termination under the news dealer agreement when he began to deliver a competitive newspaper and failed to pay his bills.

The same fate came to plaintiff Joseph Posa in a different manner. From boyhood Posa had handled the Long Island Press, holding a franchise in Flushing and Jamaica in Queens, which he operated continuously except for service in Vietnam. At the time of the Press’ demise, Posa had 1600 customers. Like the other former Press dealers, on March 25, 1977 he attended a meeting where Press managers spoke about the arrangement to handle the Post. Although he serviced customers immediately at $.75 per subscription, he did not receive a contract until May 1977. After the price increase to $1.00 in May 1978, he consulted an attorney who advised that he could charge a higher price. A Post representative warned him, however, that he would be terminated if he did.

During his relationship with the Post, Posa used his own funds to encourage carriers to obtain customers, a practice which Friedler, his former boss at the Press, did not approve. Posa was terminated in May 1979, some 7 months after the October 1978 price increase to $1.25. Prior thereto, he charged $1.40 and claims that he learned that Post employees were delivering the paper to his $1.40 customers for $1.25.

Posa’s business was multifaceted, which may explain why he never adhered to the suggested price. From April 18, 1976, he had a contract to deliver the Daily News, which Friedler had permitted. Apparently this contract, like the agreement with the Post, prohibited delivery of another newspaper. Posa never obtained written permission from the Post to deliver another newspaper and never informed them that he also handled The New York Times.

As previously noted, Post circulation was unstable. Posa lost 50% of his customers from March 25, 1977 to May 8, 1977; however, by the end of January 1978 the number was up to 1650. At the $1.10 price he lost some circulation (down to 1291), and a strike caused his customer list to plummet to 555. Afterwards, he regained ground, stabilizing at 1450, which dropped to 1223 after the October 1978 price increase. The bills in evidence confirm Posa’s testimony that he never paid the Post under the 60/40 system. Defendant’s Exh. AAA, Posa’s bill from Long Island for the week ending May 13, 1979, shows current charges of $646.63 and a balance of $3,772.10.

Posa’s in-court testimony differed from his deposition testimony in a key respect. In court, representatives of the Post told him the price to charge, whereas, at the deposition, they had suggested the price to charge. Despite the change in characterization, and perhaps because Posa was not exclusively a Post distributor, he charged what he pleased, was never terminated and did not experience any interruptions in supply. He also furnished no evidence of concerted action between the Post and anyone which furthered the alleged price fixing scheme.

Post franchise dealer James Marrinan has been in the newspaper distribution business for 20 years. From 1973 until its end in 1977, he was a franchisor for the Long Island Press in Ozone Park and Richmond Hill in Queens. Prior to the Press’ last week of publication, the Post ran advertisements soliciting individuals to distribute the paper. Friedler, who was “top man” at the Press, also offered Marrinan and other dealers contracts, but discussed no specific terms.

At the outset of the arrangement, about 1000 customers were lost. Circulation rose thereafter but fell through 1978 as the suggested price increased and, in part, because of a strike in the summer. Marrinan also complained about not receiving telephone orders, a complaint which Friedler redressed, and which the Court does not attribute to any attempt by the Post to coerce a reduction in price. During the relevant periods, Marrinan charged what he pleased and eventually sold his business for reasons unrelated to his relationship with the Post.

Notably, although he complained about having to charge the suggested price from the very beginning, he took on additional routes. The Post’s circulation problems, however, stemmed from customer resistance to at best an unfamiliar newspaper which did not publish on Sunday. Inasmuch as Marrinan set his own prices and also experienced no curtailment in supply, his testimony furnishes nothing upon which to base a finding of an antitrust violation.

Plaintiff John Mandrachia sold his route in October 1979, shortly after a strike reduced it from 275 to 197 customers. At the time he signed his contract with the Post, his 1000 Press subscribers became 300 Post subscribers. At first, he received a subsidy in the form of a credit of $15-$20 per week which ended in June or July 1977. Subsequent support in the form of promotional circulars and contests and a token transportation allowance apparently were ineffective in raising circulation. Although Mandrachia complained that the $.75 price resulted in a loss, his supervisor told him he could not raise it. He abided by the suggested price through part of 1978 but eventually raised his price to $1.25. Despite additional complaints that he needed more money to function, he was told that he could not raise the price. The situation assertedly deteriorated to the point that, prior to the sale of his route, Mandrachia operated a juice delivery route to subsidize the paper route.

Unlike Mandrachia, plaintiff Charles Flugger received no financial help from the Post to service his former Press customers in Flushing and Bayside, Queens. At the outset, he lost 400 customers. At the May 1978 meeting of newsdealers the Post’s representatives stated that dealers should charge $1.00 per subscription. Flugger charged $1.05 and lost 75 customers, part of which he attributed to the summer vacation. He believed that the Post had frustrated his efforts to promote the paper after having been supportive during the first year with contests for the carriers and bonuses, which had produced about 25 new customers per week. This number dropped to 8-10 when he was told to reduce the price. When the suggested price rose to $1.25, he charged $1.35, receiving a complaint from defendant Renke. Some time later, he rolled the price back and promotional support was reinstated, and with good reason. The Post’s circulars advertised a $1.25 price and thus were not useful to a dealer who charged more than that price.

Like Posa, plaintiff Emanuel Zuccaro received a termination letter from Friedler effective May 15, 1979. Zuccaro had been under the impression that the $.75 price would last only 2 months. He wanted to charge the newsstand price of $1.50 but eventually went to $1.10. At this price he experienced loss of phone orders. When the Post went to $1.25, he went to $1.35 and lost 20-25 customers.

Zuccaro never received any reason for his termination (under the contract none was required), which was not contemporaneous with his failure to abide by the suggested price. The news dealer contract with the Post lasted for one year from May 1977 and was terminable on 30 days notice prior to its expiration. Despite Zuccaro’s and other plaintiffs’ independent pricing stance, they were not terminated at the Post’s first opportunity in May 1978. Had terminations been forthcoming on the heels of failure to follow the pricing structure, or at the first contractually permitted opportunity, the circumstances might then have supported an inference that the news dealer agreement was a pretext designed to enforce price fixing.

Plaintiff Joseph Sharnow is still a Post news dealer. When the Press ceased publication, he had about 1500 customers in Roslyn and Williston Park in Nassau County. He testified that the circulation employees from the Press assumed the same responsibilities at the Post. At the beginning, he received a subsidy which the Post eventually reduced, in part because the Post published only six days per week, whereas the Press had published seven days per week. The subsidy was, in part, an inducement to join the Post instead of the News at an income level similar to what Sharnow had enjoyed while a Press dealer.

While the Post paid the rent for his office, he had to raise the price from $.75 to $.90 and eventually $1.00 to cover transportation for the Roslyn customers because in that area he delivered the papers by car. He also received promotional support and still receives $189 per week for transportation (txpenses. After the 60/40 system began, he charged $1.50 to the car-delivered customers, and under the plan, experienced no decrease in earnings. Over time he has purchased routes from other dealers or acquired abandoned routes.

According to Sharnow, circulation in these Long Island communities was a problem because the Post was essentially a New York City newspaper. He understood that when he had a “foot in the door” he could raise the price. It is difficult, however, if not impossible, to discern if that point was ever reached based upon defendant’s Exh. LL-1, a table showing the number of newspapers Sharnow purchased per week for his routes from 1977-81. That matter aside, he passed along transportation expenses to the customers, who received delivery by automobile, a practice which did not and has not resulted in termination despite the Post’s payment of a transportation subsidy.

Having carefully considered the testimony of the several plaintiffs and the exhibits in evidence, bearing in mind the self-serving motivations of some of the plaintiffs in light of the death of Sieg Friedler, and the Post’s substantial counterclaims for newspapers delivered and not paid for, the Court finds that the Post, although it suggested a resale price, did not coerce its retail distributors to charge that price.

Conclusions of Law

The Post’s withdrawal and reinstatement of promotional support coincident with the news dealers’ changes in price cannot be said to be coercion under the law or circumstances. The support was not contractually required. Moreover, because the Post’s promotional campaign/advertising was lawful, i.e., not in violation of the antitrust laws, logic dictates that failure to furnish promotional support to endeavors which undermined that lawful advertising also did not violate the antitrust laws.

On the basis of the foregoing, the Court finds no concerted action between the Post and its distributors, as charged in the complaint, which furthered the Post’s alleged price fixing activities. See Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 1471, 79 L.Ed.2d 775 (1984).

Unlike Northwest Publications, Inc. v. Crumb, 752 F.2d 473 (9th Cir.1985), the plaintiffs’ dealership contracts with the Post do not contain a price fixing provision.

“One evil of maximum price-fixing is that it substitutes the seller’s judgment for market forces. It may also prevent the dealer from furnishing optimal services, and it may channel distribution through large or specifically advantaged dealers.”

Id. at 475.

In this case, plaintiffs’ judgment as sellers was not substituted for market forces. Each time retail distributors charged a price in excess of the suggested price, the Post continued service and eventually raised the suggested price above the price the dealers had been charging. These circumstances hardly compel a finding that the Post’s threats of termination, assuming the credibility of the evidence of those threats, secured adherence to a suggested resale price, as is required to sustain an antitrust violation. See Reborn Enterprises Inc. v. Fine Child Inc., 590 F.Supp. 1423, 1439 (S.D.N.Y.1984), aff'd 754 F.2d 1072 (2d Cir.1985) (per curiam). While there can be little doubt of the causal connection between the Post’s advertisement of a home delivery price and the complaints the plaintiffs received from customers who felt they were being overcharged, such activity merely allows market forces to operate based upon the knowledge of the consumer.

“Coercion in the vertical price fixing context is actual or threatened affirmative action, beyond suggestion or persuasion, taken by a defendant in order to induce a plaintiff to follow the defendants’ prices.”

Bender v. Southland Corp., 749 F.2d 1205, 1213 (6th Cir.1984) (citations omitted). The antitrust laws do not prohibit the undoubtedly persuasive conduct of a manufacturer suggesting a price to the consumer for which the product should be available. Jack Walters & Sons Corp. v. Morton Bldg. Inc., 737 F.2d 698, 707-08 (7th Cir. 1984) (discussion therein); Dunn v. Phoe nix Newspapers, Inc., 735 F.2d 1184, 1187 (9th Cir.1984). As in Dunn, the plaintiffs could have and did charge prices other than the suggested retail price.

After considering the testimony and exhibits, the Court concludes from the credible evidence that: (1) Defendant engaged in no concerted activity which violated § 1 of the Sherman Act, and (2), while the Post suggested a resale price, the plaintiffs were not coerced to charge that price. Accordingly, judgment is directed for the defendant, and the complaint is dismissed.

SO ORDERED.

      . "Fed.R.Civ.P. 41(b) provides that a defendant in a case tried to the Court may move for dismissal at the close of the plaintiffs evidence on the ground that upon the facts and the law the plaintiff has shown no right to relief. In rendering judgment the Court is not to make any special inferences in plaintiffs favor. Rather, the Court is to ‘weigh the evidence, resolve any conflicts in it, and decide for itself where the preponderance lies.’ ”

        Bertolino v. Italian Line, 414 F.Supp. 279, 284 (S.D.N.Y.1976) (quoting Wright & Miller, Federal Practice & Procedure "Civil” § 2371, at 225 (1971) ).

      . The dealer contracts also contain no requirement that plaintiffs pass on any price breaks to the subscriber. See AAA Liquors, Inc. v. Joseph E. Seagram & Sons, 705 F.2d 1203, 1206 (10th Cir.1982), cert. denied, 461 U.S. 919, 103 S.Ct. 1903, 77 L.Ed.2d 290 (1983).

      . At oral argument on this motion, defendants contended that the instant case is a mirror image of Dunn; that the Post had done nothing more than the activity that had passed antitrust scrutiny in that case. Plaintiffs merely responded that Jack Walters and Dunn are not from this circuit and therefore not binding precedent. They offered no authority, however, which suggests that those cases would not be persuasive in this circuit, or should not be applied to the facts of this case, or contain statements of law contrary to established antitrust principles.


author: EDELSTEIN, District Judge:

text:
    Stefan J. ZIERING, Plaintiff, v. NEW YORK CITY DEPARTMENT OF HEALTH, OFFICE OF MEDICAL EXAMINER; Eliot M. Gross, individually and in his official capacity as Chief Medical Examiner; Robert Willis, individually and in his official capacity a Special Assistant Investigator/Inspector General; and John Griffin, individually and in his official capacity as Principal Supervisor, Defendants.
    No. 83 Civ. 7982 (DNE).
    United States District Court, S.D. New York.
    Nov. 19, 1985.
    Anton Antomattei, New York City, for plaintiff.
    Frederick A.O. Schwarz, Jr., Corp. Counsel for the City of New York (Sherrie E. Brown, Susan D. Wagner, Diane J. Morgenroth, and Norma Kerlin, of counsel), for defendants.
   OPINION AND ORDER

EDELSTEIN, District Judge:

Plaintiff Stefan J. Ziering (“Ziering”) brought this action, claiming that he had been wrongfully discharged from the Office of the Chief Medical Examiner. Ziering alleges that he was discharged based on his national origin. Plaintiff bases his claim on Title 42, Sections 1981 and 1983 of the United States Code and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. A non-jury trial was conducted on May 13 and 14, 1985. Defendants moved to dismiss the case following plaintiffs case pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The court granted the motion based on plaintiff’s failure to establish a prima facie case. This Opinion constitutes the court’s findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

Ziering, who is presently 28 years old, was born in Puerto Rico (Tr. at 21) and speaks both Spanish and English. Plaintiff was appointed as a provisional mortuary technician in the Office of the Chief Medical Examiner on November 3, 1980. (Tr. at 23). Mr. Ziering admitted that he was not treated differently than any other technicians. (Tr. at 103). Mr. Ziering’s work was satisfactory, (Tr. at 111-12), however, there was a charge regarding plaintiff being a lookout for another technician who was chiseling gold from the teeth of a corpse. Defendants elicited testimony from the plaintiff that implied that Ziering was told by the Department of Investigation that he would not be terminated as a result of this incident if he assisted in the investigation. (Tr. at 110). Although he was under investigation, no formal charges were ever made against Mr. Ziering as a result of this incident. (Tr. at 79, 111).

Plaintiff took the civil service exam for mortuary technician on January 27, 1982, and passed the exam with a scaled grade of 88.2. (Tr. at 83). A civil service eligible list was subsequently promulgated. Mr. Ziering’s position on the list, which would make him eligible for a permanent position as a mortuary technician, has not been reached. (Tr. at 84).

On October 14, 1982, Ziering was advised that his provisional employment as a mortuary technician would be terminated as of October 22, 1982. (Tr. at 100-01) Other provisional technicians were also discharged including Mr. Gary Ivey, who scored higher than Mr. Ziering on the civil service examination. (Tr. at 101).

CONCLUSIONS OF LAW

The Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), set forth the criteria for determining whether a prima facie case of racial discrimination under Title VII has been proved. Id. at 802, 93 S.Ct. at 1824. Under the circumstances of this case, these criteria may be used to determine whether the plaintiff has satisfied his burden under Sections 1981 and 1983. See Hudson v. International Business Machines Corp., 620 F.2d 351, 354 (2d Cir.) (McDonnell Douglas criteria applied to § 1981), cert. denied, 449 U.S. 1066, 101 S.Ct. 794, 66 L.Ed.2d 611 (1980); Ramirez v. Sloss, 615 F.2d 163, 167-68 & nn. 6 & 7 (5th Cir.1980) (dictum) (McDonnell Douglas factors may be applied to §§ 1981 and 1983); Allesberry v. Pennsylvania, 30 Fair Empl.Prac.Cas. (BNA) 1634, 1644 (M.D.Pa. 1981) (failure to satisfy McDonnell Douglas standards under Title VII also disposed of §§ 1981 and 1983 claims); Adams v. Gaudet, 515 F.Supp. 1086, 1095 n. 5 (W.D. La.1981) (McDonnell Douglas test “would seem to be relevant to claims ... brought under” §§ 1981 and 1983), aff'd in part mem. sub nom., Adams v. Jefferson Davis Parish School Board, 673 F.2d 1325 (5th Cir.1982); 2 A. Larson, Employment Discrimination § 52.61, at 10-177 (1979) (supports application of McDonnell Douglas standards to § 1983).

To establish a prima facie case in a discriminatory discharge situation, plaintiff must prove:

1) that he belongs to a racial minority;
2) that he was qualified for the job he was performing;
3) that he was satisfying the normal requirements in his work;
4) that he was discharged; and
5) that after his discharge the employer assigned those who were not members of plaintiffs racial minority to perform the same work.

Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1282 (7th Cir.1977); see McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. at 1824.

Plaintiff has not produced evidence regarding this final element. Specifically, plaintiff failed to introduce evidence that provisional mortuary technicians with similar qualifications were retained. The testimony relating to this element elicited by plaintiffs counsel was muddled. Plaintiff testified that a number of people worked in the Office of the Medical Examiner before he was terminated. (Tr. at 40-41, 55-57). There was no testimony, however, regarding the status of these other employees after Ziering was terminated. The only brief reference to this area was that Mr. Ziering had knowledge that these others were interviewed after the civil service list was published. (Tr. at 95). Further, evidence was elicited by the defendants distinguishing the jobs of some other provisional employees from the plaintiffs job, (Tr. at 56). Thus, evidence was never received that indicated that these individuals or others similarly employed were retained. (Tr. at 55-56).

Finally, even had a prima facie case been established, plaintiff would still not be able to recover. Defendants established a valid basis for the termination — the publication of the civil service list. Further, defendants established that an employee who scored higher than the plaintiff on the civil service exam was terminated after the civil service list came out. (Tr. at 101). Thus, there is no indication that plaintiff was treated differently from other provisional employees.

CONCLUSION

This action is dismissed based on plaintiff's failure to prove a prima facie case under Title VII, 18 U.S.C. § 2000e et seq. or 42 U.S.C. §§ 1981 and 1983.

SO ORDERED.

      . The court has weighed the evidence presented and has decided issues of fact. The court need not view the facts in the light most favorable to the plaintiff. See Fed.R.Civ.P. 41(b).

      . Spanish is plaintiffs primary language. (Tr. at 21).

      . A prima facie case under sections 1981 and 1983 may require additional elements than those set forth in McDonnell Douglas. Ramirez v. Sloss, 615 F.2d at 168 n. 7.

      . Plaintiff’s counsel attempted to introduce documents and elicit testimony from the plaintiff that would appear to relate to the retention of other provisional employees. The documents were never received into evidence, however, and the testimony did not state whether other employees were in fact retained. The failure to introduce this evidence can be traced to plaintiffs counsel’s apparent unfamiliarity with the rules of evidence and the proper method for establishing a foundation for the introduction of physical evidence. For example, on the one occasion when plaintiffs counsel did specifically offer a document relating to other employees, he did so when plaintiff was on the stand. Defendants objected, noting that it was improper to introduce the documents through Mr. Ziering. The court sustained the objection. (Tr. at 88-89). Plaintiffs counsel did not attempt to re-offer the documents through a proper witness. See Fed.R.Evid. 803(6) (business records exception to hearsay rule requires "testimony of the custodian or other qualified witness”). Plaintiff’s counsel also attempted to introduce newspaper articles relating to the Office of the Medical Examiner and relating to possible defense witnesses who were employed in the Office of the Medical Examiner. (Tr. at 11-12). Plaintiffs counsel clearly should have known that these articles are hearsay.

      . Even had plaintiff introduced evidence regarding the retention of these employees, the fourth element would still not be satisfied because they are not performing the same work as plaintiff.


author: GUNN, District Judge.

text:
    June PORTIS, Plaintiff, v. SEARS, ROEBUCK & CO., et al., Defendants.
    No. 85-1468C(6).
    United States District Court, E.D. Missouri, E.D.
    Nov. 21, 1985.
    Eugene H. Fahrenkrog, Jr., St. Louis, Mo., for plaintiff.
    Mitchell A. Margo, George E. Schaaf, Guilfoil, Petzall & Shoemake, St. Louis, Mo., for defendants.
   ORDER AND MEMORANDUM

GUNN, District Judge.

IT IS HEREBY ORDERED that the motion of plaintiff June Portis to remand the above-styled action to state court be and is granted.

Plaintiff filed her initial complaint in this action in the Circuit Court of the City of St. Louis naming as defendants Sears, Roebuck & Co. (Sears) and John Doe. In paragraph three of the state court complaint, plaintiff identified John Doe as the “manager of the aforesaid retail department store, and ... a resident of the state of Missouri.”

On June 25, 1985 defendant Sears filed a petition for removal to this Court on the basis of diversity of citizenship, 28 U.S.C. § 1441. With its petition defendant filed an affidavit of Robert J. Walstad, a citizen of Wisconsin, who was manager of the Sears store in Northwest Plaza, St. Louis at the time of the alleged accident giving rise to plaintiff’s complaint.

On October 30, 1985 plaintiff filed her first amended complaint, which substituted Louis Pogereltz, operations manager at the Northwest Plaza Sears at the time of the alleged accident, for the John Doe defendant of her original complaint. The amended complaint does not name Robert Walstad as a defendant. Defendant Pogereltz is now, and has been at all times relevant to this action, a citizen of Missouri. On the grounds that Pogereltz’s presence in this action defeats complete diversity of citizenship as mandated by 28 U.S.C. § 1441(b), plaintiff filed simultaneously with her amended complaint a motion to remand the action to state court.

Whether an action filed in state court may properly be removed to federal court is to be determined from the record at the time the petition for removal is filed. Pullman Co. v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334 (1939). When diversity of citizenship is the basis of federal jurisdiction, it must be found to exist both at the time of the initial pleadings and at the time the petition for removal is filed. 8 Wright & Miller Federal Practice & Procedure § 3723 (1985).

In the instant case the question whether complete diversity existed is complicated by the naming of “John Doe” as defendant in the original complaint. Defendant Sears reasonably substituted Robert Walstad as named defendant, since he fit the identification “manager of the aforesaid retail department store” in plaintiff’s complaint. Since Walstad is a citizen of Wisconsin, removal would be proper to this Court if he were a defendant to this suit. Plaintiff, however, has just as reasonably countered that Walstad was not the intended “John Doe.” In her motion to remand, plaintiff asserts that Pogereltz, as operations manager of the Sears store where the alleged accident took place, “was actually the officer in charge of maintenance, display and other services at the aforesaid store directly involved in the allegations of negligence in the above styled cause.” Motion for Remand ¶ 4.

When a complaint asserts no claim of any kind against a John Doe defendant, his presence in the action cannot destroy diversity. See Chism v. National Heritage Life Ins. Co., 637 F.2d 1328 (9th Cir.1981). However, where the negligence of a John Doe servant is alleged, making him a real party in interest in the suit, his citizenship will matter to a determination whether complete diversity exists. Pullman, supra at 537, 59 S.Ct. at 348. Mere allegations of citizenship of an as yet unidentified John Doe will not suffice to prevent removal, Rosack v. Volvo of Am. Corp., 421 F.Supp. 933 (N.D.Cal.1976); Hughes Const. Co. v. Rheem Mfg. Co., 487 F.Supp. 345 (N.D.Miss.1980); but when, as in the instant case, plaintiff substitutes an identifiable defendant of common citizenship with plaintiff against whom actual recovery is sought, the presence of the non-diverse party divests a federal court of jurisdiction, necessitating remand to state court. See Pullman, supra.

A federal court will look to the law of the forum state to determine whether recovery against an agent in his individual capacity is possible in a tort action, Bobby Jones Garden Apartments, Inc. v. Suleski, 391 F.2d 172 (5th Cir.1968). Missouri law holds that the individual liability of an agent will turn on the extent to which the agent has control over the condition of the premises where he is employed. Peterson v. Brune, 273 S.W.2d 278 (Mo.1954); Pavyer Printing Machine Works v. Southside Roofing Co., 446 S.W.2d 445 (Mo.App.1969). Although defendant Sears has argued that Pogereltz is not an indispensable party to this suit because Sears can adequately defend itself without him, these assertions do not dispose of the issue. Plaintiff could, under forum law, recover from defendant Pogereltz on a certain factual showing. His substitution is, therefore, not clearly a sham to defeat diversity and this Court, which would be bound to remand the action at any point in the proceedings if it became apparent that Pogereltz was a real party in interest, finds that it is appropriate to remand at this point.


author: LASKER, District Judge.

text:
    BANKERS TRUST COMPANY and Great Lakes Realty Corp., Plaintiffs, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant.
    No. 80 Civ. 2782(MEL).
    United States District Court, S.D. New York.
    Nov. 4, 1981.
   MEMO-ORDER

LASKER, District Judge.

By Memorandum-Order, dated July 22, 1981, this Court granted summary judgment to plaintiffs Bankers Trust Company and Great Lakes Realty Corp. (“Bankers”) as to that portion of its complaint which sought indemnification from defendant Hartford Accident and Indemnity Company (“Hartford”) under the subject insurance policies for clean-up operations to the property of third persons as well as to the property of Bankers as a consequence of the oil leak discovered at Bankers property on June 15, 1977 by the United States Coast Guard. Bankers Trust Company and Great Lakes Realty Corp. v. Hartford Accident and Indemnity Company, 518 F.Supp. 371 (S.D.N.Y.1981).

Thereafter, Hartford moved for reargument pursuant to Rule 3(j) of the Civil Rules of this Court and Bankers cross-moved for entry of final judgment, pursuant to F.R.Civ.P. 54(b) as to those claims for which this Court awarded summary judgment to Bankers. Oral argument was held on these motions on October 30, 1981.

Counsel for Hartford has urged that if permitted to submit supplemental affidavits he can establish that a factual issue exists which precludes the granting of summary judgment to Bankers on its claim for clean-up expenses. In order that the Court may have a complete record before it, I am permitting Hartford to submit these additional materials. While I am mindful of the cogent arguments presented by counsel for Bankers in urging that my original grant of summary judgment be adhered to, I am convinced that the interests of justice will best be served by permitting Hartford to make a full and complete record prior to the entry of any final judgment herein.

Accordingly, I am vacating my Memorandum-Order dated July 22, 1981 and, upon submission of the additional materials to be presented by Hartford, I shall determine Bankers’ motion for summary judgment de novo.

It is so ordered.


author: CARL O. BUE, Jr., District Judge.

text:
    Julia FORD and Joe Ford, Plaintiff, v. AMERICAN MOTORS CORPORATION, American Motors Sales Corporation, Jeep Corporation, AM General Corporation and the United States of America, Defendants.
    Civ. A. No. H-81-1922.
    United States District Court, S.D. Texas, Houston Division.
    Jan. 24, 1984.

      Carl Crow, Crawford, Grissom, Crow & Richards, Houston, Tex., for plaintiff.
    William H. Payne, Fulbright & Jaworski, Houston, Tex., for American Motors Corp., American Motors Sales Corp., Jeep Corp. and AM General Corp.
    Asst. U.S. Atty. Letitia Taitte, Houston, Tex., for U.S.
   ORDER

CARL O. BUE, Jr., District Judge.

Came on to be heard on the 28th day of October, 1983, the Motion of Defendant United States for Dismissal from this cause, and it appealing to the Court that it lacks subject matter jurisdiction over the United States in this cause, the Motion is hereby granted.

This action was filed against Defendants American Motors Corporation, Jeep Corporation, and American Motor Sales Corporation on July 30, 1981. Suit was filed against the AM General Corporation on March 22, 1982 and against the United States on July 8, 1982, for injuries sustained as a result of a vehicular accident.

This Court entered a Docket Control Order on October 6, 1982 setting May 2, 1983 as the last day for completion of Discovery and trial for May/June, 1983. A Continuance was granted and a new Docket Control Order set October 10, 1983 as the date for completion of Discovery.

After consideration by the court of the pleadings and memoranda of law, the record herein and of the oral argument of counsel for all parties, the court is of the opinion that the acts of the United States of which Plaintiffs complain were of a discretionary nature, involving judgments at a policy-making level. As such, they cannot form the basis for suit under the Federal Tort Claims Act, 28 U.S.C. 2675, 28 U.S.C. 2680(a).

Plaintiffs allege that, in 1979, they purchased a surplus Postal delivery vehicle at a public sale. In 1980, Plaintiff Julia Ford, while driving this vehicle, sustained injury when it tipped on its side. Plaintiffs contend that the vehicle was designed without sufficient resistance to “rollover”. The only act of the United States of which Plaintiffs complain in their Fourth Amended Complaint is the failure to warn purchasers of surplus Postal vehicles of various design characteristics which were alleged by Plaintiffs to result in a low resistance to rollover during normal and anticipated operation. Plaintiffs do not allege a specific manufacturing defect peculiar to a single vehicle.

The particular vehicle owned by Plaintiffs is a type known as a DJ-5b “quarter ton vehicle” (capacity of a quarter ton). The vehicle is a light truck by Department of Transportation classification and so states in a decal on its dashboard. The DJ-5b had been produced during 1971-2, introduced by the United States Postal Service (USPS) into use in 1972, and used until a set number of years or miles travelled were reached. These vehicles were then sold as surplus to USPS needs in accordance with the policy and practice of the USPS.

The decision to sell postal vehicles to the general public after a specified useful life for postal delivery purposes, was a discretionary function duly exercised by the United States Postal Service. Congress has granted the Postal Service the power:

(5) to acquire, in any lawful manner, such personal or real property, or any interest therein, as it deems necessary or convenient in the transaction of its business; to hold, maintain, sell lease, or otherwise dispose of such property or any interest therein; and to provide services in connection therewith and charges therefor. 39 U.S.C. 401.

The decisions as to whether and what vehicles to acquire, and to routinely sell as surplus, are made within the United States Postal Service by the Director of the Office of Fleet Management. The Office of Fleet Management, from 1971 forward, considered the possibility that some of the DJ-5 series of postal vehicles might be susceptible to a higher incidence of rollover than passenger ears and trucks. The Office of Fleet Management evaluated various studies and requested and evaluated others, and concluded that the vehicle performed satisfactorily as a light truck. The Postal Service, in considering and evaluating questions regarding performance of these vehicles, decided the vehicles were not defective. Moreover, the Postal Service has continued to order vehicles which are substantially similar in design. Evaluation of the reports on the vehicles performance, and determination that they performed satisfactorily as light delivery trucks, without modification or any particular “warning” to the drivers, was made at the level of the Director of the Office of Fleet Management.

Any claim based upon an action or omission of the Government exercising due care, in the execution of a statute or regulation, whether or not such regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. § 2680(a) (emphasis supplied). Accordingly, to the extent that Plaintiffs seek to predicate liability based upon any act or omission which constitutes a discretionary function, this attempt must fail because such a claim is barred by this provision.

In the landmark decision in this area, Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the Supreme Court discussed at length the meaning of the “discretionary function” exemption of the Federal Tort Claims Act. The plaintiff in that case sought recovery for an alleged wrongful death resulting from a catastrophic explosion of ammonium nitrate fertilizer aboard two steamships. The explosion levelled the ships and much of Texas City, Texas. Dalehite, the test case on liability, was one of some 300 separate personal and property damage claims which aggregated two hundred million dollars. The district court found causal negligence on part of the United States in: (1) the adoption of the fertilizer export plan; (2) the manufacturing process; and (3) the dereliction of official duty in failing to police the shipboard loading. Reversal of this decision by the Fifth Circuit was upheld by the Supreme Court which had granted certiorari “because the case presented an important problem of federal statutory interpretation.” 346 U.S. at 17, 73 S.Ct. at 958. The Supreme Court held as a matter of law that the claim was based upon a discretionary function or duty within the intendment of 28 U.S.C. § 2680(a), and did not establish a cause of action cognizable under the Federal Tort Claims Act.

Dalehite noted that the legislative history of the Federal Tort Claims Act revealed that § 2680(a) was included to assure protection for the United States against tort liability for errors in administration or in the exercise of discretionary functions. It was not intended that the propriety of a discretionary administrative act should be tested in a tort lawsuit. The Court further recognized that the right to sue the United States in tort was obtained from Congress, and plaintiffs necessarily assert it subject to the restrictions imposed. Since the authorization to sue contained this provision protecting the United States from all “claims, however negligently caused, that affected the Governmental functions,” the courts were bound to apply it, Id. at 32, 73 S.Ct. at 966.

In interpreting the statutory language , the Court held that the discretionary function provision excepts acts of discretion by all employees exercising discretion and precludes any action based on abuse of discretionary authority whether or not negligence is alleged to have been involved. Id. at 33-34, 73 S.Ct. at 966-67. With respect to the scope of the exception, Dalehite advised that the discretion protected is “the discretion of the executive or the administrator to act according to one’s judgment of the best course, a concept of substantial historical ancestry in American law.” Id. at 34, 73 S.Ct. at 967. The Court stated:

It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the “discretionary function or duty” that cannot form a basis for suit under the Torts Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out operations of government in accordance with official directions cannot be actionable. If it were not so, the protection of § 2680(a) would fail at the time it would be needed, that is, when a subordinate performs or fails to perform a causal step, each action or nonaction being directed by the superior, exercising, perhaps abusing, discretion. Id. at 35-36, 73 S.Ct. at 968.

The evaluation of hazards and the determination to proceed in a particular manner based on that judgment has been recognized as a protected discretionary act. In George v. United States, 703 F.2d 90 (4th Cir.1983), the plaintiff asserted that the Federal Aviation Administration should have barred the use of two dissimilar metals in a particular aircraft component. A failure of an airplane component with commingled dissimilar metals was alleged to be the proximate cause of injury. The Court found that FAA had at one time questioned the use of dissimilar, coterminous metals in fuel systems, and had decided not to ban their use. This “is clearly the type of determination for which the government is protected from liability under the discretionary function exception.” Id. at 92. The same approach was followed in Miller v. United States, 710 F.2d 656 (10th Cir. 1983, cert. den. Oct. 31, 1983) where the challenged decisions went to the essence of executive judgment in fashioning a highway in the public interest out of a welter of policy consideration.

Stewart v. United States, 486 F.Supp. 178 (C.D.Ill.1980) is also analogous to the case at bar. This Federal Tort Claims Act action attempted to predicate liability on the basis of the Government’s decision to sell asbestos from its national stockpiles in unmarked crates to industrial buyers. After dismissing the count based on strict liability, the court concluded that the remaining claim against the United States had to be dismissed as well under the discretionary function exception. The decision to sell the asbestos in unmarked crates necessitated the weighing of economic and other policy considerations at the highest levels. Accordingly, the judgment was protected and no claim based thereon was cognizable under the Federal Tort Claims Act.

The plaintiff in Wittkamp v. United States, 343 F.Supp. 1075 (E.D.Mich.1972), purchased an army surplus rifle. The rifle exploded while getting fired on a hunting trip. The Court found there was no express or implied warranty under the circumstances and no negligence on the part of the United States. It further “note[d] that the rifles’ design, manufacture and quality control were discretionary decisions of the Secretary of the War and the Chief of Ordnance” which would be excluded by 28 U.S.C. § 2680(a). With respect to the decision to permit the rifle to enter the stream of commerce, the court recognized that there were a number of legitimate means of disposal available to the Army. The decision of the Secretary of War as to the disposition of the rifle was exempt from suit because it likewise was a discretionary function.

Based upon the foregoing authorities and reasons, the Court concludes that this action must be dismissed as to the United States because the conduct complained of was action taken in the exercise or performance of a discretionary function. The Postal Service evaluated the performance of the vehicles, made the judgment that they performed satisfactorily as light delivery trucks without modification, and concluded that no particular “warning” was required. This exercise of discretionary authority and judgment cannot be challenged through the medium of a tort suit.

Accordingly, this cause is dismissed as to Defendant United States of America.

      . The continuing vitality of Dalehite has been acknowledged by the Supreme Court most recently in Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972).