author: McLAUGHLIN, District Judge.

text:
    Jean DE BLASIO and Clifton De Blasio, Plaintiffs, v. UNITED STATES of America, Defendant.
    No. 85 CV 0156.
    United States District Court, E.D. New York.
    Sept. 20, 1985.

      Frank E. Maher, P.C., Brooklyn, N.Y., for plaintiffs; Patrick J. Kane, Brooklyn, N.Y., of counsel.
    Raymond J. Dearie, U.S. Atty., for the Eastern District of New York, Brooklyn, N.Y., for defendant; Robin L. Greenwald, Asst. U.S. Atty., Brooklyn, N.Y., of counsel.
   MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

This is an action brought under the Federal Tort Claims Act (“FTCA or “Act”), 28 U.S.C. § 1346(b) (1982), to recover for personal injuries sustained at the Gateway Sports Center, part of the Gateway National Recreation Area. Defendant has moved for summary judgment, Fed.R.Civ.P. 56, on the ground that under the FTCA the United States cannot be sued for the acts or omissions of its independent contractors. For the reasons developed below, the motion is granted.

Facts

The undisputed material facts are as follows. On the night of August 15, 1982, plaintiff Jean DeBlasio was walking along the sidewalk between the golf driving range and the parking lot of the Gateway Sports Center, 3200 Flatbush Avenue, Brooklyn, New York. The Sports Center is part of the Gateway National Recreation Area, which is owned by the United States and administered by the Department of the Interior, National Park Service.

Plaintiff alleges that protruding cement nodules on the sidewalk caused her to fall, thus sustaining serious injuries. Claiming that the condition of the sidewalk was the result of the defendant’s negligence, she now sues for her physical and emotional pain and suffering and for medical expenses. Plaintiff Clifton DeBlasio, her husband, adds a derivative claim for the loss of the support, society, services and consortium of his wife.

The Sports Center is operated as a concession by Shields and Dean Concessions, Inc. pursuant to a “Contract/Permit” entered into with the National Park Service on February 2, 1976, and covering the period April 1, 1974 to December 31, 1984. The contract, which establishes Shields and Dean as concessioner, provides that Shields and Dean is responsible for the maintenance and operation of the Sports Center. The government argues that because Shields and Dean runs the Sports Center as an independent contractor, the United States cannot be liable under the FTCA for any negligent maintenance of the sidewalk.

Discussion

The FTCA, a limited waiver of the sovereign immunity of the United States, provides for suits against the United States for injuries “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment____” 28 U.S.C. § 1346(b) (1982). The Act defines “employee of the government” to include “officers and employees of any federal agency,” and specifically excludes from the definition of “federal agency” “any contractor with the United States.” 28 U.S.C. § 2671 (1982). Thus, if Shields and Dean runs the Sports Center as an independent contractor, the FTCA does not apply and the United States is immune from suit.

The Supreme Court has clearly enunciated the standard to be applied in distinguishing a federal agency from an independent contractor: “A critical element ... is the power of the Federal Government ‘to control the detailed physical performance of the contractor.' ” United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976) (quoting Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 2219, 37 L.Ed.2d 121 (1973)). I have examined the contract between the defendant and Shields and Dean and it reveals that here the government has no such power. Shields and Dean is authorized to “provide accomodations, facilities and services for the public” (contract § 2(a)), to “maintain and operate” the accomodations, facilities, and services, and to “provide the plant, personnel, equipment, goods, and commodities necessary therefor” (contract § 3(a)). It is further provided that Shields and Dean “shall provide all necessary maintenance and repairs ...” (contract § 4(f)). There is no provision for government supervision of Shields and Dean employees. Moreover, the affidavit of Robert McIntosh, Superintendent of the Recreation Area, makes clear that Shields and Dean alone is responsible for the operation and maintenance of the Sports Center (McIntosh Affidavit ¶ 3, f 4, 115).

Plaintiff submits no evidence suggesting the existence of a triable issue of fact as to whether the defendant controls the “detailed physical performance” of Shields and Dean. Plaintiff does make much of the facts that Shields and Dean must operate the Sports Center to the satisfaction of the government (contract §§ 3(a), 4(g)) and that officials of the National Park Service are empowered to make periodic inspections and spot checks of the facility (Supplementary Maintenance Agreement). The question, however, is not whether the contractor “must comply with federal standards and regulations, but whether its day-to-day operations are supervised by the Federal Government.” United States v. Orleans, supra, 425 U.S. at 815, 96 S.Ct. at 1976.

Defendant asserts that no “federal government agency or employee supervises the day to day operations” of the Sports Center (McIntosh Affidavit 11 5), and indeed the contract gives no indication that such a level of government scrutiny was within the contemplation of the parties. A provision for performance “in a manner satisfactory to the [government]” (contract § 4(g)) does not give the government day-to-day control over the operation. Rather, such a term simply enables the government to ensure that the contractor fulfills its obligations. Buchanan v. United States, 305 F.2d 738, 744 (8th Cir.1962). Moreover, the contract requires that Shields and Dean procure liability insurance (contract § 17). Such a provision is evidence that the contracting party is an independent contractor. See Lurch v. United States, 719 F.2d 333, 338 (10th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1710, 80 L.Ed.2d 182 (1984); Norton v. Murphy, 661 F.2d 882, 884 (10th Cir.1981); Buchanan v. United States, 305 F.2d 738, 742 (8th Cir.1962).

The facts here are similar to those in Logue v. United States, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973). There the Federal Bureau of Prisons contracted with a county jail to house federal prisoners. Id. at 530-31, 93 S.Ct. at 2220-21. The contract required the county to meet the Bureau of Prisons’ standards for the treatment of federal prisoners and gave the United States the right to inspect the premises. Id. at 531, 93 S.Ct. at 2221. The Supreme Court, holding that the existence of these provisions did not turn the independent contractor into a federal agency, relied on the fact that “the agreement gives the United States no authority to physically supervise the conduct of the jail's employees.” Id. Similarly, here the government can police Shields and Dean’s compliance with the terms of the contract, but it exerts no day-to-day supervisory power over the workers at the Sports Center. See also Lipka v. United States, 369 F.2d 288 (2d Cir.1966) (presence of government engineer at construction site to inspect for compliance with contract specifications and safety standards did not demonstrate sufficient government control to make the contractor an employee within the meaning of the FTCA), cert. denied, 387 U.S. 935, 87 S.Ct. 2061, 18 L.Ed.2d 997 (1967).

For the foregoing reasons, I have concluded that there is no genuine issue of material fact requiring a trial. Defendant has demonstrated that Shields and Dean is an independent contractor. Because the FTCA makes clear that the United States cannot be sued for the acts or omissions of such a party, the defendant is entitled to judgment as a matter of law. The motion for summary judgment is granted.

SO ORDERED.

      . In a lawsuit currently pending in the New York State Supreme Court, Kings County, plaintiffs seek relief from the City of New York, the Gateway Sports Center, and Shields and Dean Concessions, Inc. The injuries alleged in that case are the same as those alleged here.


source: Caselaw Access Project

author: LOUIS H. POLLAK, District Judge.

license: Public Domain

text:
    NORTHFLEET CORPORATION v. CONSOLIDATED RAIL CORP.
    Civ. A. No. 83-2992.
    United States District Court, E.D. Pennsylvania.
    Sept. 20, 1985.
   MEMORANDUM

LOUIS H. POLLAK, District Judge.

The motion for provisional pre-judgment protection of defendant Consolidated Rail Corporation (“Conrail”) presents another in a series of pre-trial disputes that have characterized this diversity case from its beginning. The case itself arises out of a disagreement between Northfleet Corporation (“Northfleet”) and Conrail over a lease. As of December 1, 1967, Northfleet allegedly leased to the Pennsylvania Railroad Company fifty (50) diesel locomotives. Conrail succeeded to the rights of the lessee under that lease on April 1, 1976.

On June 23, 1983, Northfleet filed a complaint that alleged various breaches of the lease agreement by Conrail. Among them are Conrail’s alleged failures to comply with provisions of the lease concerning casualty losses to the locomotives, to maintain the locomotives in good repair, and to deliver them to Northfleet in accordance with the lease upon its termination. See Complaint 8-19. Conrail denied Northfleet’s claims and asserted a counterclaim seeking storage charges for the locomotives because they were left with Conrail beyond the three-month grace period stipulated in the lease. See Answer, at 6-7.

This court has so far resolved the numerous disputes between the parties, particularly those concerning discovery and demands for sanctions. The action triggering this latest dispute is a sale by Northfleet of eighteen (18) of the locomotives in Conrail’s possession. Northfleet sold these locomotives to Naporano Iron Metal Company, but Conrail refused to release them unless the proceeds of the sale were put into an escrow account or Northfleet posted a bond. By a telephone conference on April 10, 1985, this court temporarily resolved the dispute with Northfleet agreeing not to distribute the sale proceeds until this motion was decided and with Conrail agreeing to release the locomotives.

The substance of Conrail’s present motion can be summarized as follows. Conrail asserts that, if Northfleet is allowed to distribute the proceeds from the sale of the locomotives, Conrail may be unable to collect on the counterclaim should it prevail in the suit. See Memorandum of Law in support of Consolidated Rail Corporation’s Motion for Provisional Pre-judgment Protection, at 2. Conrail’s fear of being unable to collect a possible judgment is based upon the alleged fact that Northfleet is no more than a “shell” corporation whose only assets are the locomotives and which is controlled by two corporations not parties to the suit, Amvest Leasing Corporation and Radnor Associates. See id. at 3. Conrail adds that the parties came to an agreement to escrow proceeds from the sale of two other locomotives. It does not understand why a similar escrow arrangement or the posting of a bond would not satisfy North-fleet with respect to the eighteen locomotives. See id. at 16-17.

Northfleet, in response, points out that other locomotives involved in the lease have been sold by it without the proceeds being put in escrow. See Memorandum of Law in opposition to Consolidated Rail Corporation’s Motion for Provisional Prejudgment Protection, at 15. Because North-fleet feels that Conrail’s motion is completely without merit, it asks the court to impose sanctions upon Conrail pursuant to the court’s power under Federal Rule of Civil Procedure 11.

Conrail has not been entirely precise in identifying the particular federal or state legal principle — and whether it is statutory, or grounded on a rule of procedure, or part of the arsenal of inherent judicial power — it invokes in asking this court for pre-judgment protection. Conrail’s broad-ranging argument does, however, touch on at least three issues — warehouseman’s lien, Federal Rule of Civil Procedure 64, and equity powers — which arguably have a bearing on the proper resolution of Conrail’s motion.

1. Warehouseman’s Lien

In its memorandum, Conrail argues at length that it has a warehouseman’s lien on the locomotives under New York law. See Memorandum, at 5-9. It is unclear what Conrail hopes to accomplish by this argument. Either 1) it is meant to establish a new claim to the locomotives, which in turn entitles it to the remedy it demands, or 2) it is intended to reassert its counterclaim, which might justify the pre-judgment remedies sought.

If by its discussion of a warehouseman’s lien, Conrail is attempting to establish a new claim to the locomotives, it is not readily apparent what differentiates this alleged lien from the counterclaim Conrail has already asserted. If there is no difference between the lien and the counterclaim, it does not seem appropriate in the context of a motion for pre-judgment protection to decide the substance of Conrail’s counterclaim. For to accept Conrail’s argument that it has a valid warehouseman’s lien would in effect be to grant its counterclaim, which in turn would appear to constitute an implicit determination of the merits of Northfleet’s claims.

On the other hand, Conrail’s discussion of the warehouseman’s lien may be understood as a reassertion of its counterclaim and thus a justification for a pre-judgment remedy. Thus, the question becomes whether one with a colorable claim to possess the status of warehouseman is entitled to any special pre-judgment protection.

Warehouseman’s law has been codified in Article 7 of the Uniform Commercial Code, which both Pennsylvania and New York, the site of the “warehousing” of the locomotives, have adopted. This statute defines “warehouseman” as “a person engaged in the business of storing goods for hire.” N.Y.Uniform Commercial Code 7-102(l)(h) (McKinney 1964). Nothing in the statute or its commentary requires this to be the person’s sole business or describes the amount of business an individual must be engaged in to achieve the status of warehouseman. Another crucial term in the Code is “warehouse receipt,” which is defined as a “receipt issued by a person engaged in the business of storing goods for hire.” N.Y.Uniform Commercial Code 1-201(45) (McKinney 1964). Such a receipt “need not be in any particular form.” N.Y. Uniform Commercial Code 7-202(1) (McKinney 1964). Finally, if one is a warehouseman and possesses goods for which a warehouse receipt has been issued, one has a lien against the bailor for such expenses as storage charges. N.Y.Uniform Commercial Code 7-209(1) (McKinney 1964). This lien is lost if the warehouseman “voluntarily delivers” or “unjustifiably refuses to deliver” the goods. N.Y.Uniform Commercial Code 7-209(4) (McKinney 1964).

Whether or not Conrail is a warehouseman, it is evident that, for the limited purposes of this motion, Conrail has at least a colorable claim to warehouseman status. In its memorandum, Conrail has made a. showing that it is in the business of storing goods for hire. See Memorandum, at 6. Moreover, Conrail’s letter to Northfleet announcing the storage charges Conrail was assessing for keeping the locomotives could, arguably, be viewed as a warehouseman’s receipt within the meaning of the Code definition. If Conrail is a warehouseman and has issued a warehouseman’s receipt, then by the terms of the Code it has a warehouseman’s lien against Northfleet for expenses related to the storage of the locomotives. The question now becomes— and this is the heart of our inquiry — whether this colorable lien creates any right to pre-judgment relief for the lienor.

Conrail has pointed to no Code provision that entitles the holder of a warehouseman’s lien to pre-judgment protection or to treatment different from that accorded to the holder of any other lien. Contrary to what Northfleet asserts and what Conrail may fear, Conrail will not have lost its putative lien if, as is the case here, it has been compelled to relinquish possession of the locomotives pursuant to a court order. See N.Y.Uniform Commercial Code 7-209 practice commentary (McKinney 1964). Accordingly, Conrad’s colorable claim of warehouseman status does not entitle it to the pre-judgment relief sought.

2. Rule 6k

The major demand for relief by Conrail, however, takes the form of a request for pre-judgment protection under the authority granted to the court by Federal Rule 64. Conrail states that pursuant to this rule and to the equitable doctrine of quia timet, or quiet title, this court has the power to set up an escrow account for the sale proceeds or to require Northfleet to post a bond if it intends to distribute these proceeds.

As Conrail recognizes, the Rule 64 pre-judgment remedies available to the court are those “available under the circumstances and in the manner provided by the law of the state in which the district court is held ...” Fed.R.Civ.P. 64. In this matter, therefore, this court must follow Pennsylvania law. Quiet title does exist as an action in Pennsylvania, see Pa.R.Civ.P. 1061, but Conrail points to no Pennsylvania ease where it has been used outside the context of quieting title to real property. Thus, given the clear directive of Rule 64, the quiet title doctrine does not offer significant grounding for the relief Conrail requests.

3. Equitable powers of the court

In its reply memorandum, Conrail suggests that this court might have “an independent grant of jurisdiction to preserve assets pendente lite.” See Reply Memorandum, at 6. Conrail has not pointed us to any federal or Pennsylvania cases in which a court, acting under its general equity powers, has required a party to deposit proceeds from a sale into an escrow account or to post a bond in order to be able to distribute sale proceeds.

Conclusion

For the foregoing reasons, Conrail’s motion for pre-judgment relief will be denied.

      . Conrail argues that New York Uniform Commercial Code law should apply because the locomotives in dispute were “stored" in New York and because the lease had a choice of law provision. It is unclear whether Northfleet contests this assertion. Given the substantial identity of the New York and Pennsylvania Code provisions on warehousemen, this Memorandum will refer to the New York Code and will not purport to dispose of the larger issue — not systematically addressed by the parties — of whether a Pennsylvania court would look to New York’s or to Pennsylvania’s Code (and supporting case law) if the provisions differed.

      . In this context Conrail cites a recent Third Circuit case upholding a lower court’s preliminary injunction that froze the assets of an employer to prevent their dissipation. See Reply Memorandum, at 5-6 (citing Nursing Home & Hospital Union No. 434 v. Sky Vue Terrace, Inc., 759 F.2d 1094 (3d Cir.1985)). However, that case dealt with the issuance of an injunction, a procedure governed by Rule 65 and a form of relief not sought by Conrail in this motion.

      . Northfleet has moved this court to impose sanctions upon Conrail pursuant to Federal Rule 11. Northfleet alleges that Conrail filed the motion for pre-judgment protection simply to harass Northfleet and to prevent it from selling the locomotives. Response at 16. Because Conrail's motion does not appear to have been interposed for such improper purposes, Northfleet’s motion for sanctions will also be denied.


author: HENRY WOODS, District Judge.

text:
    Maxine COMBS, Plaintiff, v. C.A.R.E., INC., Defendant.
    No. PB-C-84-225.
    United States District Court, E.D. Arkansas, Pine Bluff Division.
    Sept. 23, 1985.
    John L. Kearney, Pine Bluff, Ark., for plaintiff.
    Russell Gunter and Kathryn D. Holt, House, Wallace, Nelson & Jewell, Little Rock, Ark., for defendant.
   ORDER

HENRY WOODS, District Judge.

This case is pending before the Court on the defendant’s motions for summary judgment and to dismiss plaintiff’s demand for punitive damages.

Plaintiff is a black female who was employed by defendant nursing home for eleven years as an aide. After she was fired by defendant, she filed an EEOC charge claiming she had been discriminated against because of her race. She stated as the basis of her claim that although defendant’s Administrator said she was discharged after receiving three warnings, in actuality she was aware of only one. She also complained of disparate treatment in that three white aides received three or more warnings' but were not terminated.

The EEOC determined there was not reasonable cause for belief in the truth of plaintiff’s allegation and issued a Notice of Right To Sue. Plaintiff filed suit in federal court alleging violations of Title VII of the Civil Rights Act of 1964 and of the Fourteenth Amendment to the Constitution. According to plaintiff’s complaint, defendant engaged in “racially discriminatory hiring, promotion, termination, wages, placement, and other policies and practices.” Plaintiff requests declaratory and injunctive relief as well as compensation for lost wages, reinstatement, punitive damages, costs, expenses, and attorney’s fees.

The Court first considers plaintiff’s claim under the Fourteenth Amendment to the Constitution. The Fourteenth Amendment prohibits a state from violating the privileges and immunities of any citizen of the United States. It is well-settled that the prohibitions of the Fourteenth Amendment apply only to the states and not to acts of individuals. See, e.g., Watkins v. Oaklawn Jockey Club, 183 F.2d 440 (8th Cir.1950). Plaintiff in her cause of action fails to allege any involvement by the state and therefore her claim under the Fourteenth Amendment must be dismissed.

As to the remainder of plaintiff’s claims, the Court of Appeals for the Eighth Circuit has stated that a plaintiff may file a suit under Title VII on those claims “like or related to” the substance of the EEOC charge. Satz v. ITT Financial Corp., 619 F.2d 738, 742 (8th Cir.1980). Title VII envisions that the EEOC will have had the opportunity to obtain voluntary compliance before an issue becomes the subject of a civil suit. Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir.1970). Plaintiff’s narrow charge before the EEOC concerned only discrimination in firing. Furthermore, the EEOC Letter of Determination deals only with plaintiff’s discharge. There is no evidence that the EEOC investigation involved or reasonably should have involved any issue other than termination.

This Court is mindful that in considering the breath of an EEOC charge, it must broadly and liberally construe the terms in order to effect the remedial and humanitarian purposes of Title VII. EEOC v. Western Publishing Co., 502 F.2d 599 (8th Cir.1974). However, it cannot be fairly said that plaintiff’s complaints of discrimination in promotion, wages, placement, and “other policies and practices” are like or related to the charge of discrimination in firing.

U.S. District Judge G. Thomas Eisele, in a case remarkably similar to the case at hand, reached the same conclusion. Judge Eisele stated, “[Cjlaims of discrimination in promotion, pay, training, work conditions, and requirements are not like or related to the discharge claim.” Paulino v. Miller, 32 F.E.P. 1230 (E.D.Ark.1983). It is the custom of judges in this district to follow the decisions reached by their colleagues unless the facts of a particular case warrant a different result. This practice, as applied to questions of state law, has been approved by the judges of the Court of Appeals. Brown v. Missouri Pacific Railroad, 703 F.2d 1050 (8th Cir. 1983).

Furthermore, the plaintiff in her deposition abandoned the claims of discrimination relating to promotion and wages. She stated, “They haven’t discriminated [against] me in promotions.” Plaintiff’s deposition at page 22. In answer to the question, “[H]ow did they discriminate against you in wages,” she answered, “They haven’t.” Id. Plaintiff’s claims must therefore be dismissed pursuant to Fed.R.Civ.P. 12(h)(3).

Defendant’s final argument concerns whether a claim for punitive damages is cognizable under Title VII. Punitive damages are not expressly authorized by Title VII. Furthermore, the catch-all remedy clause refers to “any other equitable relief” and not to money damages. 42 U.S.C.A. § 2000e-5(g) (1981) (emphasis supplied). The majority of courts have denied punitive damages under this statute. E.g., Great American Federal Savings & Loan Assn. v. Novotny, 442 U.S. 366, 374-75 and n. 17, 99 S.Ct. 2345, 2350 and n. 17, 60 L.Ed.2d 957 (1979). See generally 2 A. Larson, Employment Discrimination, § 52.42 (1985). Courts within this circuit have reached the same result. Hybki v. Alexander & Alexander, Inc., 536 F.Supp. 483 (W.D.Mo.1982); Gan v. Kepro Circuit System, 28 F.E.P. 637 (E.D.Mo.1981); Cervantes v. Dobson Brothers Construction Co., 25 F.E.P. 1405 (D.Neb.1976). This Court agrees with their conclusion and holds that punitive damages are not recoverable under Title VII.

For the reasons stated above, IT IS ORDERED that plaintiffs claims of discrimination in hiring, promotion, wages, placement, and other policies and practices be dismissed. Plaintiff will proceed to trial on the termination issue.

Defendant’s motion to dismiss plaintiff’s claim for punitive damages is hereby granted.


author: GERALD J. WEBER, District Judge.

text:
    Sherman S. ATKINSON v. Margaret M. HECKLER, Secretary of Health & Human Services.
    Civ. A. No. 84-1009.
    United States District Court, W.D. Pennsylvania.
    Sept. 23, 1985.
    John McTiernan, McArdle, Caroselli, Spagnolli, Beachler, Pittsburgh, Pa., for plaintiff.
    Anthony M. Mariani, Asst. U.S. Atty., Pittsburgh, Pa., for defendant.
   MEMORANDUM OPINION

GERALD J. WEBER, District Judge.

Plaintiff received a favorable decision in his appeal from the Secretary’s denial of his application for disability insurance benefits. Plaintiff’s counsel now seeks approval of $3,878.45 in attorney’s fees. He has not included a copy of the Social Security Administration’s award certificate which sets forth how much of the award has been withheld for attorney’s fees. He has stated in his motion however, and the United States Attorney agrees, that the amount withheld is $3,878.45 and that this is 25% of the past due benefits.

The Secretary has since submitted a brief opposing the motion for approval of attorney’s fees. She does not challenge the reasonableness of the hours counsel spent before the court. She does oppose any award of attorney’s fees for time spent on administrative proceedings, which constitutes about half of counsel’s time as listed. Her brief directs us to conflicts among the circuits, and even among the members of this court, over whether to award attorney’s fees for representation before the Administration. Cf., e.g., Webb v. Richardson, 472 F.2d 529 (6th Cir.1972) and Morris v. Social Security Administration, 689 F.2d 495 (4th Cir.1982); Kemp v. Schweiker, 587 F.Supp. 778 (W.D.Pa. 1984) and Snizaski v. Heckler, 602 F.Supp. 1119 (W.D.Pa.1985). The rationale behind the opinions favoring the award of attorney’s fees by the court for representation before the Secretary and vice versa is that it avoids duplication of effort by attorneys seeking fees and by courts and the Secretary in determining fees. It is also argued to be the simplest method of assuring that the statutory 25% fee ceiling is not exceeded. We do not question the idea that such goals should be pursued by any tribunal as a matter of course. We do not subscribe to this position, however, for two reasons.

The first, and in our view, decisive, reason is the clarity of the statutory language. The provision for fee awards, 42 U.S.C. § 406, is divided into two subsections. Subsection (a) states that:

Whenever the Secretary, in any claim before him for benefits under this sub-chapter, makes a determination favorable to the claimant, he shall, if the claimant was represented by an attorney in connection with such claim fix (in accordance with the regulations prescribed pursuant to the preceding sentence) a reasonable fee to compensate such attorney for services performed by him in connection with such claim.

The following subsection, (b)(1) provides that:

Whenever a court renders a judgment favorable to a claimant under this sub-chapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation____(our emphasis).

In dividing these provisions for fee payments into two discrete sections, and inserting the limiting language emphasized above, we believe Congress chose to keep fee awards in the two different forums separate.

The second reason for distinguishing the source of fee awards is that we learn very little about the lawyer’s performance before the Secretary from the record we see, and vice versa. We thus simply are not in a sound position to gauge his or her competence in any proceeding outside this court. Furthermore, the Secretary has promulgated regulations to govern awards of attorney’s fees. See 20 C.F.R. § 404.1720-1730. The Secretary’s standards differ to some extent from ours in form and content, which is appropriate, since some different skills are involved in representation at the two levels. There is no corresponding task at the administrative level, for example, to preparing a summary judgment brief in this court. We therefore will award attorney’s fees only for time spent before this court. We will not award any fees for time spent preparing the fee petition; this time does not benefit the client. Plaintiff’s counsel must seek from the Secretary any fees for work at the administrative level.

Plaintiff’s counsel has not stated his hourly rate. We have roughly divided the total number of hours into $3,878.45, the amount set aside, which gives us a figure of $93. We will multiply this hourly rate by 22 hours, the time counsel spent on proceedings before this court, to arrive at a fee award.

      . On the first page of counsel's motion and in his proposed order, he requests the amount above. On the second page, labelled "Petition to Obtain Attorney’s Fees” which lists his hours, he requests approval of a fee of $3,989.45. We will use the first figure with which the Secretary concurs. To avoid such possible mistakes in the future, counsel should include a copy of the Administration’s award certificate in their motions.


text:
    Martha C. WEST, Plaintiff, v. UNITED STATES of America, Defendant.
    No. CV 84-7950-DWW.
    United States District Court, C.D. California.
    Sept. 23, 1985.
    Grace E. Emery, Santa Ana, Cal., for plaintiff.
    Robert C. Bonner, U.S. Atty., Frederick M. Brosio, Jr., Asst. U.S. Atty., Chief, Civ. Div., Eugene Kramer, Asst. U.S. Atty., Los Angeles, Cal., for defendant.
   MEMORANDUM

DAVID W. WILLIAMS, Senior District Judge.

Martha West brings this action under the Federal Tort Claims Act (28 U.S.C. § 1346(b)) alleging that she was injured in a collision which was caused by negligence on the part of governmental agents during a high-speed pursuit. On January 19, 1983 immigration agents working the San Clemente checkpoint stopped a person suspected of smuggling at a secondary area for questioning. The automobile sped away and two of the agents took off in pursuit. They traveled approximately 10 miles on Highway 5 and then saw a number of brake lights flashing ahead of them. When they came upon the scene they found that the pursued car had made a dangerous lane change and had struck several automobiles also northbound, including that of the plaintiff. Plaintiff seeks to hold the government liable for her damages and injury úpon the theory that the officers’ pursuit of the suspect was reckless and created a danger to the other users of the highway, thereby breaching their statutory duty to drive with due regard for the safety of all persons using the highway.

In order for damage to be compensable under a negligence theory there must be (1) a legal duty to use due care; (2) breach of the legal duty; and (3) the breach must be the proximate cause of the injury. City of Sacramento v. Superior Court, 131 Cal. App.3d 395, 402, 182 Cal.Rptr. 443 (1982). This case involves two questions: First, can public entities be held liable for damages arising from the collision of a pursued suspect’s vehicle with that of an innocent motorist? Second, at what point do police officers breach a duty of care by failing to discontinue a high-speed chase?

LEGAL DUTY

A public entity can be held liable for injuries proximately caused by its employees who negligently operate a motor vehicle in the course of their employment. Cal.Veh.Code § 17001. Drivers of authorized emergency vehicles who sound a siren and display a red lighted signal, have a further legal duty to drive with due regard for the safety of all persons using the highway and in a manner that does not impose an unreasonable risk of harm. Cal. Veh.Code §§ 21055, 21056; Brummett v. County of Sacramento, 21 Cal.3d 880, 886, 148 Cal.Rptr. 361, 582 P.2d 952 (1978). When this duty is breached, a public entity will be held liable, even if it was the pursued motorist who collided with the victim. Stark v. City of Los Angeles, 168 Cal.App.3d 276, 282, 283, 214 Cal.Rptr. 216 (1985); See City of San Jose v. Superior Court, 166 Cal.App.3d 695, 697, 698, 212 Cal.Rptr. 661 (1985); City of Sacramento v. Superior Court, supra, 131 Cal.App.3d, at 405, 182 Cal.Rptr. 443; Duarte v. City of San Jose, 100 Cal.App.3d 648, 656, 161 Cal.Rptr. 140 (1980).

One rationale for imposing such liability is that the officers have created a foreseeable risk of harm. For example, in Stark v. City of Los Angeles, supra, 168 Cal. App.3d, at 281, 214 Cal.Rptr. 216, a Los Angeles police officer who had observed the commission of a traffic violation gave chase at forty (40) miles per hour in a twenty-five (25) miles per hour residential zone. The fleeing motorist made a squealing left turn, sped through two stop signs and a yield sign before broadsiding the plaintiff’s car. At the point of impact, the police vehicle was about 500-600 feet away. The California Court of Appeal affirmed the city’s liability for its police officer’s negligence in failing to sound its siren or discontinue the chase. Id. at 281, 289, 214 Cal.Rptr. 216.

The court affirmed that the failure to discontinue pursuit could be evidence of lack of due care. More importantly, the court also reasoned that one who creates a foreseeable peril has a legal duty to protect and/or warn innocent third persons of misconduct by another. Id. at 283, 214 Cal.Rptr. 216. When the officers gave chase, they created the danger of the suspect’s fleeing at high speeds because he was being pursued. Under these circumstances the officers were negligent in failing to activate the siren to warn plaintiff, even if they delayed only fifteen (15) seconds. Id. at 285, 214 Cal.Rptr. 216.

Similarly, in City of Sacramento v. Superior Court, supra, 131 Cal.App.3d, at 399, 406, 182 Cal.Rptr. 443, police officers observed a suspected drunk driver pass through a red light. By the time the officers pulled away from the curb, the driver had proceeded through another red light and was at least a block and one-half away. He was attempting to run a third red light when he collided with plaintiff’s car. Plaintiff charged that the officers had failed to activate their warning lights and siren during the pursuit.

The court held that police officers may be negligent in failing to alert innocent parties to the impending danger, where the police chase has caused a suspect to engage in a course of conduct which threatens the safety of users of the highway. Id. at 405, 182 Cal.Rptr. 443. Accordingly, the Court of Appeal sustained the trial court’s denial of the city’s motion for summary judgment because a factual issue existed as to whether the officers actually created the dangerous situation. While some evidence indicated that the drunk driver had already commenced a dangerous pattern of driving before the officers started their chase, the suspect testified that he decided to run the final red light because he saw the officers pursuing him. Id. at 406, 182 Cal.Rptr. 443.

A second major reason for imposing liability even when the fleeing motorist collides with the plaintiff arises from the public policy considerations underlying Cal. Yeh.Code § 17001. Thus, in City of San Jose v. Superior Court, supra, 166 Cal.App.3d, at 687, 212 Cal.Rptr. 661, after observing a suspect motorist driving at forty-nine (49) miles per hour in a twenty-five (25) miles per hour zone, the police engaged in a high-speed chase at speeds of up to one hundred (100) miles per hour.

The court decided not to immunize the city merely because a fleeing suspect was at the wheel. To do so would thwart Veh. Code § 17001’s legislative purpose of holding public entities financially accountable for their employees’ torts committed within the scope of employment. Id. at 699, 212 Cal.Rptr. 661.

In the instant case the United States Government is not immune from liability merely because the fleeing illegal alien collided with the plaintiff. Rather, just as in Stark v. City of Los Angeles, supra, 168 Cal.App.3d, at 285, 214 Cal.Rptr. 216, the Border Patrol agents may have created the dangerous situation of the illegal alien’s high-speed and reckless flight. The suspect may have initiated a dangerous pattern of conduct by speeding away from the Border Patrol checkpoint. However, his subsequent decisions to overtake motorists using the median strip and make a dangerous lane change were arguably the result of the chase. Like, in City of Sacramento v. Superior Court, supra, 131 Cal.App.3d, at 406, 182 Cal.Rptr. 443, the drunk driver attempted to run the red light because he saw the officers pursuing him.

It is therefore necessary to determine if the Border Patrol agents’ conduct in failing to discontinue the chase was negligent.

BREACH OF LEGAL DUTY

Whether a law enforcement officer’s conduct during a chase constituted a breach of his legal duty to use due care and whether that breach proximately caused the plaintiff’s injuries are questions of fact for the trier of fact. City of San Jose v. Superior Court, supra, 166 Cal.App.3d, at 702, 212 Cal.Rptr. 661.

There is a strong public policy favoring the apprehension of fleeing criminals which should not be thwarted by imposing undue safety measures on law enforcement officers. However, the cited cases illustrate that there is an equally competing policy of holding public entities financially accountable when in the course of such pursuits, police officers do not show due regard for the safety of all persons using the highway.

Although under certain circumstances the conduct of the pursuing officers can support a finding of negligence attributable to their employer arising out of a high-speed chase, I conclude that under the facts of this case judgment should be rendered in the favor of the defendant for at least the following reasons: The officer driving the pursuing vehicle was an ex-pilot in the air force who had thereafter been specially trained in driver-pursuit upon taking employment with the immigration agency. He had engaged in two to three pursuits a week and testified that there have been occasions when he has stopped the pursuit because because of weather conditions or the safety of others.

On January 19,1983 the officer was driving a car equipped with a light and siren and was pursuing on the four-lane freeway which was mostly flat and straight. His lights were flashing constantly and he used his siren as it was needed. Traffic was moderate and the weather was not an endangering factor. The chase was not upon surface streets which are characterized by stop signals and intersections, and there was no point before the actual happening of the accident at which any erratic driving on the part of the pursued vehicle would have warned the officers that a continuation of the chase would spell danger to others.

Law enforcement officers are often charged with the duty of pursuing the automobile of a suspect, and liability should not automatically attach to the carrying out of these duties as long as the officers acts are not reckless and as long as it reasonably appears to them that the chase can result in the arrest of the suspect without posing undue risks to others. Any other rule would seriously hamper law enforcement and would encourage persons under suspicion to drive rapidly away from the presence of officers, knowing that they would not be pursued. It should also be borne in mind that once such a chase is commenced and the suspect knows he is being pursued, the abandonment of the officers of the pursuit is not always communicated to the suspect so as to have him cease his reckless forward motion.

In the instant case there was no event that happened before the actual collision which would have served to warn the pursuing officers that a continuation of the chase would involve danger to others earlier than the maneuvering by the suspect which in fact caused the collision and the injury. I find therefore that the officers had a legal obligation to commence the chase; that the possibility of a collision between either the pursued car or the officers’ car with the automobile of innocent persons was minimized because the chase took place on a freeway; that the officers made no observation of reckless driving on the part of the pursued vehicle (other than high speed) prior to the collision with plaintiff, and that up to then no act occurred that should have triggered a decision on the part of the officers to abandon the chase out of a consideration of safety to others.

■ Judgment is ordered in favor of the defendant.

Pursuant to Rule 52(a) F.R.C.P. this memorandum shall constitute the Findings by the Court.


author: LITTLE, District Judge.

text:
    Donald and Tami Sue GUNTER v. MARINE OFFSHORE CATERING COMPANY, INC., et al.
    Civ. A. No. 84-3032.
    United States District Court, W.D. Louisiana, Alexandria Division.
    Sept. 24, 1985.
    Neblett, Beard & Arsenault, Richard J. Arsenault, Alexandria, La., for plaintiff.
    Habans & Bologna, P.L.C., John C. McNeese, Energy Center, New Orleans, La., Mouton, Roy, Carmouche, Bivins, Judice & Henke, Harmon F. Roy, Lafayette, La., for defendant.
   RULING

LITTLE, District Judge.

Asserted as a fourth cause of action in this petition is the claim of Tami Sue Gunter. She alleges that she is the wife of Donald Gunter and that her husband was injured on 13 May 1983 while in the course of his employment with defendant, Marine Offshore Catering Company, as a seaman and member of the crew of a jack-up rig, a vessel in navigation, owned by Atlantic Pacific Marine Corporation, which was being furbished by Delta Construction Company, Inc. As a result of the negligence of the defendants, Tami suffered a loss of her husband’s consortium and has suffered .mental anguish by being forced to witness the suffering endured by her husband, whereby her own nerves and health were seriously shocked, weakened and impaired. Due to the injured physical and mental condition of her husband, Tami continues, according to her petition, to suffer in mind and body and has been denied the care, and, comfort, companionship, affection, love, attention, protection and society of her husband and the pleasure and assistance of her husband in escorting her to visit friends and relatives and to perform all husbandly functions. For this loss Tami demands $150,000.

The Supreme Court stepped boldly and positively in 1970 when it created a cause of action under general maritime law to allow a wrongful death claim based on unseaworthiness. Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). Thus, in a death case, under general maritime law, a surviving spouse has a cause of action for damages which her husband sustains due to his death. Moragne was expanded in Sea-Land Services v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974) to accord a spouse of a deceased seaman a cause of action for damages which the surviving spouse sustained due to the death of the seaman spouse even though the surviving spouse asserts her claim after the husband’s claim has been judicially determined. Moragne was further enlarged by American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980) to grant a spouse a cause of action for loss of her husband’s society in a nonfatal accident under general maritime law.

The dissent in the Gaudet case was most critical of the practical application of its holding. Justice Powell directed his attention specifically to the beneficiaries who would have a right to sue due to the fatal injury suffered by the seaman:

“In this regard, it might be noted that the Court has still not resolved many of the practical questions left open in Moragne, such as how to define the class of beneficiaries or an appropriate limitation period. Presumably, in resolving such questions the lower courts are to continue to rely on the admiralty wrongful-death statutes. Now they are placed in the interesting position of analogizing two statues under which the very claim before them would be blocked.”

414 U.S. p. 602, 94 S.Ct. p. 806. The concern of Justice Powell becomes lifelike in the case sub judice as Tami Sue Gunter did not marry Donald Gunter until after his injury. A defendant has filed a motion for summary judgment asking this Court to dismiss Tami’s claim, as previously described, since she was not the type of beneficiary granted relief under Gaudet, Moragne or Alvez.

It would be simple and perhaps appropriate to grant the motion and dismiss Tami’s demand by merely quoting from and expanding on Judge Rubin from Hamilton v. Canal Barge Company, Inc., 395 F.Supp. 978, 987-988 (E.D.La.1975):

“Neither DOSHA, the Jones Act, nor state death actions recognize as a benficiary anyone other than a relative. Death is a rupture in the social fabric. It causes loss to many, to fiancees and neighbors, to friends, to organizations to which the decedent belonged, to charities he may have supported, and in individual cases to many others who may have loved the deceased and been seriously affected by his death. But statutes granting a right to recover for the loss occasioned by death have always been limited to relatives, and, as we have seen, in some instances only to those who were also dependents.
No one can doubt that Ms. Dunn was injured by Mr. Hamilton’s death, or that the entire course of her life has been altered. But she was not a relative; hence she may not be awarded money damages for the grievous hurt she has suffered. Compare In re Sincere Navigation, E.D.La.1971, 329 F.Supp. 652.
Nor can damages be awarded her on the basis that the defendants caused her fiancee to breach his promise of marriage. No attempt need be made to ascertain whether state law or federal law should determine the liability for an interference with such a relationship by breach of a duty imposed by the maritime law. Louisiana does not recognize any action for interference with contractual relations, Cust v. Item Co., 1942, 200 La. 515, 8 So.2d 361; and the maritime law does not recognize an action for negligent interference with a contractual relationship. Kaiser Aluminum & Chemical Corp. v. Marshland Dredging Co., 5th Cir.1972, 455 F.2d 957.”

But something more needs to be said. The content of general maritime law emanates from judicial decisions, it is not a statute. It is judge-made law ever bending, ever expanding and ever responsive to social flow. This is distinguished from, for example, the Jones Act, 46 U.S.C. § 688, which by specific statutory language does not allow for recovery by Mrs. Gunter for the damages she allegedly sustained. While general maritime law is judicially crafted, one should not expect that there will be six or seven hundred different causes of action created whimsically by six or seven hundred different federal district judges. Judicial restraint demands some semblance of order and reasonable predictability. For that reason, this Court, and others, looks to the legislative will of the states to determine how those bodies have addressed identical situations.

A small minority of states disallow a cause of action to the non-injured spouse. See Loss of Consortium, Case and Comment, July-August, 1985. Louisiana, like the vast majority of other states, creates a cause of action to a non-injured spouse for damages which that spouse suffers as a result of injury to the other spouse. To allow loss of society actions to engaged couples would be an unwarranted expansion of general maritime law not recognized by a majority of grass root legislatures.

The Court is not unmindful of two cases where a loss of consortium has been recognized to an individual engaged to be married to an injured individual. See Bulloch v. United States, 487 F.Supp. 1078 (N.J. 1980) and Sutherland v. Auch Inter-Borough Transit Company, 366 F.Supp. 127 (E.D.Pa.1973). Neither case has fathered any approving jurisprudence. To the contrary, the Bulloch holding was rejected in Childers v. Shannon, 183 N.J.Super. 591, 444 A.2d 1141 (1982) and the Auch case met a similar fate at the hands of Rockwell v. Liston, 71 Pa.D. & C.2d 754 (1975). This Court agrees with the logic employed in the decision of Navarre v. Wisconsin Barge Line, Inc., 502 F.Supp. 360 (S.D.Ill.1980). An individual should not be entitled to marry a cause of action. See also, W. Prosser, The Law of Torts, § 124 at p. 874 (4th ed. 1971); Restatement (Second) of Torts, § 693, comment h (1977). While it is true that there have been changes in social attitudes, we cannot create a right based on considerations that have been rejected by so many.

We hold that general maritime law does not grant a cause of action for loss of consortium or loss of society to one who marries a seaman who has suffered injury prior to the marriage.

The motion for partial summary judgment is GRANTED and an appropriate judgment shall issue.


text:
    Dorothy F. RODGERS, et al., Plaintiffs, v. EIGHTY FOUR LUMBER COMPANY, Defendant. JONICO MUSIC, et al., Plaintiffs, v. EIGHTY FOUR LUMBER COMPANY, Defendant. HARRISON MUSIC CENTER, et al., Plaintiffs, v. EIGHTY FOUR LUMBER COMPANY, Defendant.
    Civ. A. Nos. 84-828, 84-1114 and 84-1944.
    United States District Court, W.D. Pennsylvania.
    Sept. 24, 1985.
    John Eichleay, Kevin Abbott, Pittsburgh, Pa., for plaintiffs.
    Daniel J. Weis, Weis & Weis, Pittsburgh, Pa., for defendant.
   OPINION

GERALD J. WEBER, District Judge.

Plaintiffs in these consolidated actions are the registered holders of copyrights and are all members of the American Society of Composers, Authors and Publishers (ASCAP), which has a non-exclusive right to license non-dramatic performances of its members’ copyrighted compositions. Plaintiffs have filed three separate actions alleging 49 counts of wilful copyright infringement by defendant in five of Eighty Four Lumber Company’s stores in New York, Illinois, Alabama, California and Texas, and seek a permanent injunction against further infringement, an award of statutory damages for each infringement and an award of costs and reasonable attorneys’ fees. Plaintiffs now move for summary judgment and have filed evidentiary material and brief in support thereof. Defendant has opposed plaintiffs’ motion with evidentiary material and brief.

Summary judgment would be available in a copyright infringement action where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Sailor Music v. The Gap Stores, Inc., 516 F.Supp. 923 (S.D.N.Y.1981), aff'd 668 F.2d 84 (2d Cir.1981), cert. denied 456 U.S. 945, 102 S.Ct. 2012, 72 L.Ed.2d 468 (1982). We believe that there is no genuine issue of fact as to liability in this action, and that defendant is liable as a matter of law. The following discussion indicates the basis for our decision to grant in part plaintiffs’ motion for summary judgment.

There is no material issue regarding the fact that defendant Eighty Four performed the musical compositions listed in plaintiffs’ complaints by transmitting the radio broadcasts over multiple speakers in the five stores specified. Plaintiffs have produced affidavits in support of these facts which are undisputed by defendant.

Rather, defendant’s brief narrows its arguments against imposition of liability to two issues: (1) that Eighty Four’s performances are exempt under 17 U.S.C. § 110(5), and (2) that the provisions of the Copyright Act of 1976 are beyond the constitutional grant to Congress.

We first consider defendant’s exemption argument.

17 U.S.C. § 110 lists and describes certain performances that are exempt and do not constitute a copyright infringement. Subsection (5) describes one of these exemptions as:

... communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless—
(A) a direct charge is made to see or hear the transmission; or
(B) the transmission thus received is further transmitted to the public.

Defendant argues that the facts in this case bring its performances within the § 110(5) exemption because: (1) the noise levels in its stores were significant, (2) the sole purpose for using music was to muffle the industrial noise of the work place, and (3) the receiving apparatus was not altered or augmented for the purpose of improving the aural quality of the performance for individual members of the public using these areas or to attract the public to its stores, (emphasis added).

Accepting the facts in the light most favorable to defendant for purposes of this motion, we do not believe that these facts bring defendant’s performances within the § 110(5) exemption especially in light of the additional uncontroverted evidence presented by the plaintiffs. Defendant is, in effect, arguing that since its primary purpose for using the music was to muffle industrial noise for the benefit of employees and not to attract the public to its stores, it should be exempt. We have no doubt that § 110(5) provides no such exemption, and that the purpose for which the music was used is irrelevant to the question of infringement in this case. See Herbert v. Shanley Co., 242 U.S. 591, 37 S.Ct. 232, 61 L.Ed. 511 (1917); Chappell & Co. v. Middletown, 334 F.2d 303, (3d Cir. 1964).

The 1976 Copyright Act and particularly the legislative history establish without a doubt the “outer limit” of the § 110(5) exemption in specifics such as physical size of the establishments and the nature of the receiving apparatus. The Conference Report which accompanied the final version of the 1976 Copyright Act indicates:

It is the intent of the conferees that a small commercial establishment of the type involved in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 [95 S.Ct. 2040, 45 L.Ed.2d 84] (1975), which merely augmented a hometype receiver and which was not of sufficient size to justify, as a practical matter, a subscription to a commercial background music service would be exempt.

Conf.Rep.U.S.Code Cong, and Admin.News 1976, p. 5816.

Under the particular fact situation in the Aiken case assuming a small commercial establishment and the use of a home receiver with four ordinary loud speakers grouped within a relatively narrow circumference from the set, it is intended that the performances would be exempt under clause (5). However, the Commit: tee considers this fact situation to represent the outer limit of the exemption, and believes that the line should be drawn at that point____

U.S.Code Cong, and Admin.News, 1976, p. 5700-01; See, also, The Gap, 668 F.2d at 86; Broadcast Music, Inc. v. United States Shoe Corp., 211 U.S.P.Q. 43 (C.D. Cal.1980), aff'd 678 F.2d 816 (9th Cir.1982).

Aiken involved a restaurant with a total of 1055 square feet, only 620 of which were open to the public. The Gap store, at 2,769 square feet was found to be of “sufficient size to justify, as a practical matter, a subscription to a commercial background music service,” The Gap, 516 F.Supp. at 925, and therefore was not exempt. Defendant has indicated that Eighty Four stores all have public areas in excess of 10,000 square feet.

Furthermore, Eighty Four’s sound system is more like a commercial sound system than like the “single receiving apparatus of a kind commonly used in private homes ...” described in the statutory exception. Defendant admits that in 1983 it was the corporate policy or practice to use radio broadcasts throughout its stores and that the sound equipment for the stores was centrally purchased. The equipment customarily purchased consisted of radios, speakers, amplifiers and microphones. The radio-and-speaker systems in each store consist of a radio receiver and separate amplifiers, which are located in the office of the store. They are wired to 2 to 5 separate speakers mounted throughout the interior of the commercial area of the store, which is a separate area from the office, and to 1 to 3 separate speakers mounted outside the store. Most of the speakers are located approximately 150 feet away from the radio receiver and amplifier. The systems also contain a public address system. This clearly is not the kind of system commonly used in private homes. Having made these findings we see no reason to consider other arguments on this issue. The § 110(5) exemption does not apply to defendant’s performances.

Defendant’s constitutional argument contends that the provisions of the 1976 Copyright Act are beyond the constitutional grant of power to Congress as stated in U.S. Const. Art. 1, § 8, Cl. 8:

To promote the Progress of Science and Useful Acts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

We do not agree, and believe that the Supreme Court has made clear that although Congress’ power under this clause is limited to action that promotes the useful arts, it is up to Congress to decide the best manner in which this can be accomplished. Graham v. John Deere Co., 383 U.S. 1, 6, 86 S.Ct. 684, 688, 15 L.Ed.2d 545 (1966); Mitchell Brothers Film Group v. Cinema Adult Theatre, 604 F.2d 852, 860 (5th Cir.1979). The Copyright Act is an embodiment of such a Congressional decision, Dallas Cowboys Cheerleaders v. Scoreboard Posters, 600 F.2d 1184, 1187 (5th Cir.1979), and the Courts’ role in judging whether Congress exceeded an Article I power is limited. We do not believe that defendant’s arguments provide any basis for a finding that Congress overreached the stated constitutional purpose by enacting this statute.

Since we believe that there is a genuine dispute regarding the wilfulness of the infringement and since this is a factor to be considered by the court in arriving at damages, we will deny plaintiffs’ motion for summary judgment on damages.

An appropriate order will issue.

      . Defendant also uses these facts regarding its purpose for playing the music to support the proposition that it did not further transmit the performance to the public. The undisputed evidence of the physical layout and the equipment later described in this opinion make it clear that a commercial sound system was used to transmit the music into public areas from the office where it is received. This is sufficient to satisfy the definition of “transmit” in 17 U.S.C. § 101. See, also GAP, 516 F.Supp. at 923; Hampshire House Publishing Corp. v. Sal and Sam’s Rest., Inc., Civil Action No. 84-1296 (E.D.La.1985).

      . Defendant's reliance on language in Aiken is misplaced. The Aiken court was involved in statutory interpretation of the 1909 Copyright Act, and never considered the constitutionality of the statute.


author: KANE, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Gerald L. ROGERS, et al., Defendants.
    Crim. A. No. 84-CR-337.
    United States District Court, D. Colorado.
    Sept. 25, 1985.

      Richard J. Nolan and Edward P. Timmins, Asst. U.S. Attys., Denver, Colo., for plaintiff.
    Jeffery S. Gordon, O’Donnell & Gordon, Los Angeles, Cal., and John Moorhead, Baker & Hostetler, Denver, Colo., for Rogers.
    Laurence B. Finegold, Franco, Asia, Bensussen, Coe & Finegold, Seattle, Wash., for Coomber.
    Ray Takiff, Coconut Grove, Fla., for Fonseca-Lopez.
    Michael Canges, Canges & Volpe, Denver, Colo., for Lepone.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

After eighteen months of investigation and deliberation, a grand jury of the District of Colorado returned a thirty count indictment in this case on November 29, 1984. The indictment charges the named defendants with mail fraud, racketeering, fraudulent interstate transactions, aiding the filing of false or fraudulent tax returns, conspiracy to obstruct justice, subornation of perjury, and perjury. Additionally, the indictment alleges forfeitures under the Comprehensive Forfeiture Act of 1984, Pub.L. No. 98-473, § 302, 98 Stat. 1976, 18 U.S.C. § 1963. On the next day, November 30, 1984, the grand jury filed a “Superceding (sic) Indictment” which contained the identical counts plus an additional paragraph in the forfeiture allegations following Count XI. This paragraph lists the entities which are subject to the forfeiture allegations.

This case is before me on defendants’ motions for bills of particulars pursuant to Fed.R.Crim.P. 7(f). Defendants seek 222 enumerated particulars. The total number of requests, however, is approximately 500. Ordinarily, an order dealing with motions for bills of particulars does not merit circulation or publication. Here, however, we are confronted with a new act of congress which in itself constitutes a significant departure from traditional concepts of criminal law. Judges, prosecutors, and defense counsel are all plowing new ground, so to speak. Accordingly, the actions taken here may be worthy of consideration as other such cases are filed. As will become obvious, I have relied heavily on Judge Murphy’s excellently written opinion in United States v. Thevis, 474 F.Supp. 117 (N.D.Ga. 1979).

I.

Motions for bills of particulars are addressed to the sound discretion of the trial court. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 302, 71 L.Ed. 545 (1927); United States v. Gabriel, 715 F.2d 1447, 1449 (10th Cir.1983). Discretion in this area is very broad. A denial of a motion for bill of particulars will not be disturbed on appeal unless an abuse of discretion is shown. United States v. Barbieri, 614 F.2d 715, 719 (10th Cir.1980); see Wyatt v. United States, 388 F.2d 395, 397 (10th Cir.1968).

At least one result of the wide latitude afforded trial courts in making a Rule 7(f) determination is that few concrete standards have been developed. United States v. Shoher, 555 F.Supp. 346, 349 (S.D.N.Y. 1983); United States v. Lavin, 504 F.Supp. 1356, 1361 (N.D.Ill.1981). Additionally, the available precedent is of limited utility since each case is particularly limited to its own facts. Thevis, 474 F.Supp. 117, 123. In other words, “[wjhile there has been widespread recognition of the issues presented by a motion for Bill of Particulars, see 1 Wright, Federal Practice and Procedure § 129 (1969), there has been little general analysis of the manner in which those issues are to be resolved in a particular case.” Thevis, 474 F.Supp. 117, 123.

This is not to say, however, that I am totally without guidance in resolving the instant motions. The purpose of a bill of particulars is clear and there are a few well-settled principles to be applied. Also, “[cjertain factors, including the complexity of the offense charged, the clarity of the indictment and the degree of discovery available to the defendant without the bill are relevant to this issue.” Lavin, 504 F.Supp. 1356, 1361; see also Shoher, 555 F.Supp. 346, 349; Thevis, 474 F.Supp. 117; United States v. Climatemp, Inc., 482 F.Supp. 376 (N.D.Ill.1979); United States v. Magaw, 425 F.Supp. 636 (E.D.Wis.1977). In order to evaluate properly defendants’ specific requests for particulars, it is important to enunciate the principles by which the individual particulars will be analyzed, beginning with the purposes of a bill of particulars.

It is axiomatic that a criminal defendant should be given enough information about the offense charged so that he may prepare adequately for trial. See 1 Wright, Federal Practice and Procedure § 219 at 436. The primary purpose of a bill of particulars is “[to] more specifically define the charge set forth in the indictment, so that the defendant is apprised of the charges against him with sufficient clarity in order to allow him the opportunity to prepare his defense and to obviate prejudicial surprise to the defendant at trial.” Thevis, 474 F.Supp. 117, 123. Additionally, “further clarity may allow the defendant to raise a double jeopardy defense, if applicable.” Thevis, 474 F.Supp. 117, 123; see also United States v. Mackey, 551 F.2d 967 (5th Cir.1977).

Given these purposes, it follows that “[t]he test in passing on a motion for a bill of particulars should be whether it is necessary that defendant have the particulars sought in order to prepare his defense and in order that prejudicial surprise will be avoided.” 1 Wright, Federal Practice and Procedure § 129 at 436. In applying this test, the federal district court in Thevis adopted the following two-part analysis:

If the particular requested is such that on its face its nondisclosure until trial would result in prejudicial surprise to the defendant or the preclusion of an opportunity for meaningful defense preparation, then the request must be granted. See, United States v. Bearden, [423 F.2d 805], 809 [(5th Cir.1970)]; United States v. Sullivan, 421 F.2d 676 (5th Cir.1970); Hickman v. United States, 406 F.2d 414 (5th Cir.1969); 1 Wright, Federal Practice and Procedure § 129 (1969).
On the other hand, if the requested particular is not such that the Court can determine on its own that nondisclosure until trial would result in prejudicial surprise or the preclusion of an opportunity for meaningful defense preparation, then the Court must balance the competing interests of the defense and the government. Where there is no prima facie case for disclosure, the defendant has the burden of showing by brief, affidavit or otherwise that nondisclosure would lead to prejudicial surprise or the obviation of opportunities for meaningful defense preparation. See, United States v. Rubino, 320 F.Supp. 613 (M.D.Pa.1970).

Thevis, 474 F.Supp. 117, 123-24.

This does not mean, however, that a motion for bill of particulars is a “carte blanche to the defense to investigate the government’s case.” Thevis, 474 F.Supp. 117, 123; see also United States v. Litman, 547 F.Supp. 645, 654 (W.D.Penn. 1982); United States v. Sherriff, 546 F.2d 604, 606 (5th Cir.1977); United States v. Leonelli, 428 F.Supp. 880, 882 (S.D.N.Y. 1977). It is well-settled that “[a] bill of particulars may not be used to compel the Government to disclose evidentiary details or to explain the legal theories upon which it intends to rely at trial.” Gabriel, 715 F.2d 1447, 1448, quoting United States v. Burgin, 621 F.2d 1352, 1359 (5th Cir.1980); see also Barbieri, 614 F.2d 715, 719; United States v. Raineri, 91 F.R.D. 159, (W.D. Wis.1980); Climatemp, 482 F.Supp. 376, 390 (N.D.Ill.1979); United States v. Hedman, 458 F.Supp. 1384, 1386 (N.D.Ill.1978); United States v. Tedesco, 441 F.Supp. 1336, 1343 (M.D.Pa.1977). Thus, “[t]he probability of prejudicial surprise or inadequate opportunities for defense preparation to the defendant must be balanced against the government’s general right to prevent disclosure of its evidence and legal theories.” Thevis, 474 F.Supp. 117, 124; see also United States v. Miller, 210 F.Supp. 716 (S.D.Tex.1962).

If the competing interests of the defense and the government are closely balanced, the interests of the defendant in disclosure must prevail:

In 1966, Rule 7(f) was amended to strike the requirement of showing of cause pri- or to the granting of a motion for Bill of Particulars, and the Advisory Notes to the amendment reflect that change was “designed to encourage a more liberal attitude towards bills of particulars without taking away the discretion which courts must have in dealing with such motions in individual cases.” This amendment requires that the defendant be given the benefit of the doubt in gray areas. United States v. Manetti, [323 F.Supp. 683], 697 [ (D.Del.1971) ].

Thevis, 474 F.Supp. 117, 124.

II.

With the foregoing principles in mind, I will now address the merits of the motions filed in this case.

First, several of defendants’ requests for particulars have already been sufficiently answered in whole or in part in the indictment and through discovery. Additionally, the government has agreed to provide answers to other requests. Accordingly, these requests are denied. See Thevis, 474 F.Supp. 117, 124; United States v. Smith, 65 F.R.D. 464, 469 (N.D. Ga.1974); 1 Wright, Federal Practice and Procedure § 129 at 436.

In several counts of the indictment, it is alleged that defendants, “together with others both known and unknown to the Grand Jury”, committed the relevant acts charged. Defendants request disclosure of the identity of such persons either known by the grand jury or now known to the government. It is well-settled that the government must identify undisclosed and unidentified co-conspirators, aiders and abettors, and other individuals involved in the criminal acts charged; especially where the government plans to call such persons as witnesses. See Barbieri, 614 F.2d 715, 719; United States v. Barrentine, 591 F.2d 1069, 1077 (5th Cir.1979); Thevis, 474 F.Supp. 117, 125; United States v. Hubbard, 474 F.Supp. 64, 81 (D.D.C.1979); United States v. Fine, 413 F.Supp. 740, 746 (W.D.Wis.1976); United States v. Burgio, 279 F.Supp. 843, 846 (S.D.N.Y.1968). As stated in Thevis, “to do otherwise is to guarantee prejudicial surprise to the defendant if the government is allowed to produce undisclosed, unknown members of the enterprise and its activities to testify against the defendant.” 474 F.Supp. 117, 125. Thus, defendants’ requests for such particularization are clearly proper. The government has agreed to answer most of these requests. To that extent, defendants’ requests are denied. The government has not, however, stated that it will provide this information with respect to defendant Coomber’s request 74. That request is granted.

While the government has agreed, for the most part, to identify co-violators, it objects to defendants’ requests for particularization of any overt acts those persons committed with regard to the crimes charged. The government contends that these requests improperly seek evidentiary detail. Minute details of the occurrence of any overt acts may constitute purely evidentiary material not subject to particularization. Hubbard, 474 F.Supp. 64, 81. The government must, however, provide enough information to apprise defendants of the nature of their own alleged overt acts as well as those of co-violators. See Thevis, 474 F.Supp. 117, 125; Fine, 413 F.Supp. 740, 746; United States v. Ahmad, 53 F.R.D. 194, 201 (M.D.Pa.1971); Burgio, 279 F.Supp. 843, 846; United States v. Pilnick, 267 F.Supp. 791, 801 (S.D.N.Y. 1967); United States v. Covelli, 210 F.Supp. 589, 590 (N.D.Ill.1962); cf. United States v. Giese, 597 F.2d 1170 (9th Cir. 1979); United States v. Kilrain, 566 F.2d 979 (5th Cir.1978); United States v. Armocida, 515 F.2d 49 (3d Cir.1975); United States v. Carroll, 510 F.2d 507 (2d Cir. 1975). Such information is necessary for trial preparation and to avoid prejudicial surprise at trial; especially where the government seeks to hold defendants liable for the overt acts of alleged co-conspirators. Thus, defendants’ requests for particularization of overt acts is granted. The government must reveal the substance, time, place, and date of each overt act as well as the identities of the participants in those acts.

Similarly, the government must provide particularization of allegedly false statements made by defendants. See, e.g., United States v. Caine, 270 F.Supp. 801 (S.D.N.Y.1967); Pilnick, 267 F.Supp. 791; United States v. Garrison, 168 F.Supp. 622 (E.D.Wis.1958); cf. Shoher, 555 F.Supp 346. General allegations of false statements and testimony are not sufficient. This criminal case should not differ from any civil matter where allegations of fraud and misrepresentations must be pleaded with particularity under Fed.R.Civ.P. 9(b). In fact, application of this rule in criminal cases is even more compelling than in civil matters because defendants’ liberty interests are at stake. Accordingly, defendants’ requests for particularization of allegedly false statements are granted. The government must reveal the substance, date, time, and place of each false statement or concealment and the persons involved.

Defendant Rogers also requests particulars concerning the criminal forfeiture provisions of 18 U.S.C. § 1963. Count XI of the indictment lists various corporate entities and properties of the defendants which the government contends are subject to forfeiture under 18 U.S.C. § 1963 as property acquired and maintained in violation of 18 U.S.C. § 1962. Rogers’ requests seek particularization of his interest in these entities, how such interest afforded Rogers a source of influence, the identity of others who hold interests in the entities, and how such interests were acquired or maintained in violation of 18 U.S.C. § 1962(c) or constituted proceeds of criminal acts or enterprise. The indictment is insufficiently clear in that it does not detail any connection between many of the entities to be forfeited and the activities of the enterprise. The government must disclose additional information regarding the nexus between the listed entities and the enterprise so that the defense may direct its investigation and trial preparation with sufficient direction. See Thevis, 474 F.Supp. 117, 125. The indictment is sufficiently clear, however, in putting defendants on notice of the government’s theory. Thus, these requests for particulars are granted in part and denied in part.

The remainder of defendants’ requests are denied. These requests seek information, by and large evidentiary in nature, which is not required under Rule 7(f). The indictment is sufficient, along with information provided by the government, to allow the defense to conduct its own investigation and thus preclude prejudicial surprise at trial.

In ordering the government to particularize, I do not intend to limit strictly the government’s proof at trial. Rather, I intend to prevent surprise at trial and denial of a fair opportunity to prepare for trial. If the government is unable to respond in precise terms at this time because it is uncertain as to the facts, the government should respond as precisely as it is able and thereafter adhere to a continuing duty to disclose promptly as additional or more precise facts become known.

IT IS THEREFORE ORDERED THAT:

1. Defendants’ motions for bills of particulars are granted in part and denied in part.

2. The government shall respond to those requests granted herein as well as provide that information it has already agreed to provide within twenty days of the date of this order.

3. The government has a continuing duty to disclose promptly as facts not presently known become known.

      . Fed.R.Crim.P. 7(f) provides, in relevant part, that: "A motion for a bill of particulars may be made before arraignment or within ten days after arraignment or at such later time as the court may permit. A bill of particulars may be amended at any time subject to such conditions as justice requires.”

      . An abuse of discretion is indicated where the “defendant was actually surprised at trial and thus that substantial rights of his were prejudiced by the denial.” 1 Wright, Federal Practice and Procedure § 130 at 295; United States v. Thevis, 474 F.Supp. 117, 123 (N.D.Ga.1979).

      . Unfortunately, defendants Rogers and, to a lesser extent, Coomber, have not individually numbered subparts to their requests. Consequently, I must briefly describe each part in granting or denying requests.
      The following requests of Rogers are denied because they have been sufficiently answered: 3 (president and secretary/treasurer of IME); 4 (owner of First Gold Bank, officers and directors); 5 (relation of General Miniere to GEM-SA, business manager, director, and officers of General Miniere, whether General Miniere engaged in mining development for IME, General Miniere's relation to venture); 6 (officers, directors, and agents for corporations); 7 (whether Yukon did development work for GEMSA); 8 (whether Fonseca-Lopez held an interest in Westlake Mortgage and WSI, Fonseca-Lopez’s role in these corporations); 9 (the relation of the various corporations to one another); 20 (which documents are referred to); 25 (contents of each mailing); 36 (which documents are referred to); 42 (identify each false document); 47 (true figures for mining report, false figures, negative statements omitted); 54 (content of each mailing); 60-63 (whether purposes were illegal); 64 (what "activities” were referred to); 66 (whether activities were illegal); 67 (which activities were conducted through which entity); 76 (whether there are any other forfeitables, identity); 79 (whether there are any other forfeitable interests, identity); 82 (whether any of the properties listed are subject to forfeiture, identity); 83 (whether any other property is subject to forfeiture); 93 (amount of each taxpayer’s investment, dates investments made); 112 (defendant Lepone’s false testimony); 113 (Lindblom’s false testimony); 114 (Rigney’s false testimony); and 115 (Wismer’s false testimony).
      The following requests of Coomber are denied because they have been sufficiently answered: l(a)-(c); 6(a) — (f); 7(a); ll(a)-(b); 13(b); 14(a); 15; 28; 29; 30; 44; 49; 71 (identify substance or provide copy of letter); 72(a); and 73.

      . Rogers’ requests 10, 13, 26, 29, 44, 49, 56, 68, 91, 99, and 102. Coomber's requests 10, 16, 24, 36, and 48.

      . Coomber’s requests 4(d) (whether Coomber ever identified himself as Mr. de Bleu); 13(a); 14(b)-(c); 16(b) — (c); 18; 22(e); 25(a)-(c); 31(a)-(c); 32-35; 36(b)-(d); 37(a)-(c); 38(a)-(b); 40-41; 42(a)-(c); 51-52; 54-59; and 70. Rogers’ requests 1, 2, 13 (acts “others” performed); 15 (except for Rogers’ role); 16; 23-24; 29 (acts “others” performed); 30 (except for Rogers’ role); 32; 39; 51; 53; 55; 57; 65; 74; 92; 94; 96; 98; 100 (except as to whether Rogers actually knew about it and when and how he learned about it); 104 (except for Rogers’ role); 105 (except for Rogers’ role); 106 (except for Rogers’ role); 107; 108 (except for Rogers’ role); 109-110; 111 (except for Rogers’ knowledge and role); 112-116; and 118-119.

      . Lepone’s requests 1-4 to the extent the government has not already agreed to answer them. Rogers’ requests 11-12; 19, 21 (this request asks why the representation was false); 27-28; 34; 40-41; 43; 45-46; 50; 52; 87-90; 103; 111 (false testimony, affidavits); and 117. Coomber's requests 2(e); 3(c); 4(d) (whether he identified himself as Mr. de Bleu); 12; 17; 19-21; 23-24; 27; 39(b)-(c); 42(d)-(e); 43; 46; 53; and 60-69.

      . Rogers’ requests 75, 77-78, 80-81, and 84-85 are denied. The government must, however, reveal the nexus between the properties to be forfeited and the enterprise.

      . Rogers’ requests 5 (Rogers’ role); 6 (Rogers’ role); 7 (who owned and controlled Yukon, what work did Yukon do, did it conduct any business; Rogers’ role); 8 (whether Fonseca-Lopez held any interests in IME and GEMSA); 13 (role of others); 14; 15 (Rogers’ role); 17; 18; 20 (Rogers’ role); 22; 29 (role of others); 30 (Rogers’ role); 31; 33; 35; 36 (Rogers' role); 37-38; 44 (role of others); 47 (Rogers’ knowledge); 48; 49 (role of others); 58-59; 69-73; 86; 95; 97; 101 (Rogers’ knowledge); 103 (Rogers’ role); 104 (Rogers’ knowledge and role); 105 (Rogers’ role); 106 (Rogers’ role); 107 (Rogers’ role); 108 (Rogers’ role); 109 (Rogers’ role); 111 (Rogers’ role and knowledge); and 120. Coomber’s requests 2(a)-(d), (f); 3(a)-(b); 4(a)-(c); 5(a)-(c); 7(b); 8(a)-(b); 9; 10(b); 11(c); 22(a)-(d); 26; 30; 39(a); 45; 47(a)-(c); 50; and 71(a)-(c).


author: FEIKENS, Chief Judge.

text:
    Herbert L. HILL, Plaintiff, v. TERMINIX INTERNATIONAL, INC., a Tennessee corporation, Defendant.
    Civ. A. No. 85-CV-72909-DT.
    United States District Court, E.D. Michigan, S.D.
    Sept. 26, 1985.

      Kenneth A. Skronek, Dietrich & Cassavaugh, Detroit, Mich., for plaintiff.
    Robert M. Vercruysse, Butzel, Long & Van Zile, Detroit, Mich., for defendant.
   MEMORANDUM OPINION

FEIKENS, Chief Judge.

Plaintiff, Herbert Hill, has sued defendant, Terminix International, Inc., in a four-count Complaint alleging breách of an implied employment contract, wrongful employment termination, and breach of an implied covenant of good faith and fair dealing in the employment contract. The Complaint was originally filed in Wayne County Circuit Court, and defendant removed the action to this Court. Jurisdiction is based on 28 U.S.C. § 1332, there being complete diversity between the parties.

The matter before me is defendant’s Motion for Summary Judgment or to Dismiss. The primary argument upon which defendant relies is that plaintiff signed a release which allegedly covers the claims in this suit. The release reads as follows:

Release and Waiver of Seniority
Whereas HERBERT HILL has filed a claim under the Workmen’s Compensation Act for injury alleged to have resulted from his employment, and whereas the employer, TERMINIX INTERNATIONAL, has denied liability, the undersigned, HERBERT HILL, in consideration of a settlement of this claim through redemption proceedings with the Bureau of Worker’s Disability Compensation, does hereby voluntarily quit his employment with the [sic] TERMINIX INTERNATIONAL, waives any and all seniority rights he may have and releases any claim he may have for re-employment based upon such seniority rights.
[HERBERT HILL]
HERBERT HILL
(SS# [ XXX-XX-XXXX ])
WITNESS: [GEORGE CASSAVAUGH]
DATED: [5/28/1985]

Defendant’s Exhibit A, p. 3. Defendant also submitted an affidavit from Bill G. Young, personnel director for defendant, which stated that plaintiff executed the release pursuant to a $35,000 settlement in redemption proceedings before the Michigan Bureau of Worker’s Disability Compensation. Defendant's Exhibit A, p. 1. Plaintiff has not disputed the authenticity of the release or the averment that the release was executed pursuant to a $35,000 settlement.

Defendant has cited authority for the proposition that a release is a complete bar to suit. See Williams v. Metoyer, 46 Mich. App. 573, 577-78, 208 N.W.2d 653 (1973) (release is bar to suit); McElmurry v. Nine, 89 Mich.App. 290, 279 N.W.2d 301 (1979) (release is bar to suit); LaBeach v. Beatrice Foods Co., 461 F.Supp. 152, 157 (S.D.N.Y.1978); Horgan v. Industrial Design Corp., 657 P.2d 751, 753 (Utah 1982). Plaintiff, however, argues that the cases are inapposite because they address preclusion of subsequent suits that are identical to the earlier suit in which the release was executed. Plaintiff distinguishes this case because the earlier suit was different than the suit before me, i.e. the earlier suit was a Worker’s Compensation claim and the suit before me is a wrongful termination claim.

Plaintiff further argues that this case should be analogized to Slayton v. Michigan Host, Inc., 122 Mich.App. 411, 332 N.W.2d 498 (1983). In Slayton, plaintiff, Donna Slayton, was employed by defendant, Michigan Host. In January, 1979, Slayton and a number of her co-workers filed a suit in federal court alleging sexual harassment. In November, 1979, Slayton sought Worker’s Disability Compensation benefits for injuries caused by work-related falls. In October, 1980, the Worker’s Compensation claim was redeemed. Slayton released Michigan Host from any and all liability under the Worker’s Compensation Act for all injuries or occupational diseases; she also voluntarily quit her employment and waived any and all seniority rights she might have had.

In January, 1981, Slayton brought an action against Michigan Host and two of her former supervisors at Michigan Host alleging that they forced her to quit her job in retaliation for the earlier filed federal sex discrimination suit. Defendants moved for summary judgment on the ground that the remedy Slayton sought was only available to her in a Worker’s Disability Act action, and she had waived her rights under that act. The trial court granted the motion.

The Court of Appeals held that Slayton’s discrimination claim did not merge with her Worker’s Compensation Act claim. The case was reversed and remanded to the lower court. The last sentence of the Opinion, however, is particularly interesting in applying the teachings of Slayton to this case.

We direct the court’s attention to the agreement made between the plaintiff and defendant Michigan Host as under the agreement the plaintiff may have waived some of her claims with respect to defendant Michigan Host.

122 Mich.App. at 417, 332 N.W.2d 498. These instructions to the trial court indicate to me that the release might preclude some of Slayton’s employment discrimination claims even though the release was for a Worker’s Compensation claim. The dis-positive factor is whether the language of the release is broad enough to encompass the employment claim.

I must make the same inquiry in this case — is the language of the Worker’s Compensation release broad enough to encompass plaintiff’s employment termination claims? I hold that the language of the release does cover plaintiff’s claims and that plaintiff is accordingly precluded from continuing this lawsuit. The gravamen of plaintiff’s Complaint is that he was wrongfully terminated and that defendant breached certain contractual duties in such termination. Under the terms of the release, however, plaintiff “voluntarily quit ... and waive[d] any and all seniority rights” in consideration for a $35,000 settlement of his Worker’s Compensation claim. The release was witnessed by George Cassavaugh, plaintiff’s attorney in the Worker’s Compensation case, and plaintiff has not asserted that he entered the release under duress or other extenuating circumstances.

Accordingly, defendant’s Motion for Summary Judgment IS HEREBY GRANTED. An appropriate order shall be submitted.