author: GIERBOLINI, District Judge.

text:
    TRANS-ASIATIC OIL LIMITED, S.A., Plaintiff, v. APEX OIL COMPANY, Defendant, Puerto Rico Electric Power Authority, Garnishee.
    Civ. No. 83-339 GG.
    United States District Court, D. Puerto Rico.
    Oct. 20, 1983.

      Francisco G. Bruno, Santiago, Pérez, Bermúdez & Bruno, Hato Rey, P.R., for plaintiff.
    Pedro J. Santa-Sánchez, O’Neill & Borges, Hato Rey, P.R., for defendant.
   OPINION AND ORDER

GIERBOLINI, District Judge.

This is an action to recover a series of demurrage charges which plaintiff, Trans-Asiatic Oil Limited, S.A. (Trans-Asiatic) claims are due and owing to it by defendant, Apex Oil Company (Apex). Jurisdiction is alleged under Title 28, United States Code, Section 1333.

Plaintiff is a Panamanian corporation with its principal place of business in Israel. Defendant is a foreign corporation with its principal place of business in Missouri.

The pertinent facts may be briefly summarized as follows:

Plaintiff, Trans-Asiatic is a vessel owner who apparently chartered several vessels to Apex. As a result of that relationship, plaintiff avers that it has a series of claims against Apex for demurrage incurred during certain voyages performed by plaintiffs vessels on behalf of Apex. A verified complaint was filed by plaintiff to re'cover these debts from defendant. Since defendant could not be found within this district, Trans-Asiatic served a process of maritime attachment and garnishment upon Puerto Rico Electric Power Authority (PREPA) on March 2, 1983, pursuant to Rule B(l) of the Supplemental Rules for Certain Admiralty and Maritime Claims. Through said service of process, credits or monies owed by PREPA to defendant amounting to $324,-083.26 were attached.

Defendant has requested that the process of maritime attachment and garnishment be vacated on the grounds that plaintiff failed to comply with Rule 19 of the Rules of the United States District Court for the District of Puerto Rico; that the process of maritime attachment and garnishment is null and void under the Constitution of the United States; and that a substantial portion of plaintiff’s monetary claims against Apex cannot, as a matter of law, be the object of the garnishment effected.

I

Rule 19 provides in its pertinent part as follows:

Rule 19: Security for Costs
A. No complaint in an action in person-am with process of maritime attachment or garnishment, as provided for in Rule B of the Supplementals of the Federal Rules of Civil Procedure, as well as an action provided for in Rule D of said Supplementals, shall be filed, except on the part of the United States or on the special order of the Court, unless the party offering the same shall file a stipulation in the minimum sum of $250.00 for costs, conditioned that the principal shall pay all costs awarded by the Court and, in case of appeal, by an appellate court, against him, it or them. In lieu of a stipulation, the party may deposit the minimum of $250.00 for costs in the registry of the Court, without requiring permission or an Order of the Court.

Plaintiff did not file the stipulation required by this rule with the verified complaint. However, on April 13, 1983 the sum of $250.00 for costs, contemplated in the aforementioned rule, was deposited by Trans-Asiatic with the registry of this court. Thus, the requisites of Rule 19 have been fully complied with and this issue is moot.

II

The principal issue here is whether the process of maritime attachment and garnishment, provided in Rule B(l) of the Supplemental Rules for Certain Admiralty and Maritime Claims, is constitutionally valid. Defendant contends that Rule B(l) violates the due process clause of the Fifth Amendment because it permits this court to exercise jurisdiction despite the absence of sufficient contacts of the defendant with this district based on Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). Apex further contends that Rule B(l) violates the due process clause because it results in the deprivation of property without prior notice and hearing on the basis of Sniadach v. Family Finance Corporation of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and its progeny.

To determine the validity of defendant’s arguments, consideration must be given to the special character of admiralty proceedings and the rationale for Supplemental Rule B. Suits under admiralty and maritime jurisdiction are autonomous from common law policies and principles. The Supreme Court held in Romero v. International Term. Operat. Company, 358 U.S. 354, at 368, 79 S.Ct. 468, at 478, 3 L.Ed.2d 368 (1959) that “[A]ll cases to which ‘judicial power’ extends ‘arise’ in a comprehensive, non-jurisdictional sense of the term, ‘under this constitution.’ It is the Constitution that is the ultimate source of all ‘judicial Power’ — defines, grants and implies limits — and so ‘all Cases of admiralty and maritime jurisdiction arise under the Constitution in the sense that they have constitutional sanction.’ But they are not ‘Cases, in Law and Equity, arising under this Constitution, the laws of the United States

The autonomy of admiralty and maritime law from common law principles has been consistently recognized in more recent decisions. See Amoco Overseas Oil Co. v. Compagnie Nationale Algerienne de Navigation, 605 F.2d 648 (2nd Cir.1979) and Grand Bahama Petroleum Co., Ltd. v. Canadian Transportation Agencies, Ltd., 450 F.Supp. 447 (W.D.Wash.1978). See also, Polar Shipping, Ltd. v. Oriental Shipping Corp., 680 F.2d 627 (9th Cir.1982), in which admiralty autonomy was again restated. This autonomy is grounded on the maritime context in which admiralty is set. The Supreme Court made this clear in the case of Re Louisville Underwriters, 134 U.S. 488, 493, 10 S.Ct. 587, 589, 33 L.Ed. 991 (1890) by stating:

Courts of admiralty are established for the settlement of disputes between persons engaged in commerce and navigation, who, on the one hand, may be absent from their homes for long periods of time, and, on the other hand, often have property or credits in other places. In all nations, as observed by an early writer, such courts ‘have been directed to proceed at such times, and in such manner, as might best consist with the opportunities of trade, and least hinder or detain men from their employments.’ (citation omitted) In the same spirit this court has more than once said: ‘Courts of admiralty have been found necessary in all commercial countries, for the safety and convenience of commerce and the speedy decision of controversies, where delay would often be ruin.’ (Citations omitted). To compel suitors in admiralty (when the ship is abroad and cannot be reached by a libel in rem) to resort to the home of the defendant, and to prevent them from suing him in any district in which he might be served with a summons or his goods or credits attached, would not only often put them to great delay, inconvenience and expense, but would in many cases amount to a denial of justice.

The process of foreign attachment which plaintiff used in this case has been recognized to be of ancient origin and preceding the founding of this Republic. As stated in Manro v. Almeida, 23 U.S. (10 Wheat.) 206, 6 L.Ed. 369 (1825):

Thus, this process has the clearest sanction in the practice of the civil law, and during the three years that the admiralty courts of these states were referred to the practice of the civil law for their “forms and modes of proceeding,” there could have been no question that this process was legalized. Nor is there anything in the different phraseology adopted in the act of 1792, that could preclude its use. That it is agreeable to the “principles, rules and usages, which belong to courts of admiralty,” is established, not only by its being resorted to in one at least of the courts of the United States, but by the explicit declaration of a book of respectable authority, and remote origin, in which it is laid down thus: “If the defendant has concealed himself, or has absconded from the kingdom, so that he cannot be arrested, if he have [sic] any goods, merchandise, ship or vessel, on the sea, or within the ebb or flow of the sea, and within the jurisdiction of the Lord High Admiral, a warrant is to be impetrated to this effect, viz., to attach such goods or ship of D., the defendant, in whose hands soever they may be; and to cite the said D. specially as the owner, and all others who claim any right to title to them, to be and appear on a certain day to answer unto P., in a civil and maritime cause”.

The process of foreign attachment, developed to meet the necessities of those engaged in the multiple aspects of maritime commerce has two purposes as established in Swift & Co. v. Compañía Colombiana, 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206 (1949): (1) to secure the appearance of the respondents and (2) to secure satisfaction in case the suit is successful. See also San Rafael Compañía Naviera, S.A. v. American Smelting & Refining Co., 327 F.2d 581, 589 (9th Cir.1964). It should be noted that foreign attachment was originally found in Rule 2 of the former Rules of Admiralty which, after the unification of those rules with the F.R.C.P. in 1966, became Supplemental Rule B.

Apex’s first challenge is based upon the due process clause as it restricts the assertion of personal jurisdiction through proceedings by attachment. Maritime attachment is part of admiralty jurisdiction in the maritime- context. Since the constitutional power of the federal courts is separately derived from admiralty, suits under admiralty jurisdiction involve separate policies to a certain extent. This principle suggests, not only that jurisdiction by attachment of property should be accorded special deference in the admiralty context, but also that maritime actors must reasonably expect to be sued where their property may be found. See Amoco Overseas Oil v. Compagnie Nationale Algenienne, supra, 605 F.2d at 655. Thus, the history of maritime attachment itself, the autonomy of admiralty, jurisprudence, the long constitutional viability of maritime attachment, and the modern trend in admiralty to strengthen traditional admiralty remedies against property, rather than to erode them, compel the conclusion that the common law principles enunciated in Shaffer v. Heitner, supra, do not apply to Rule B(l) attachments. The unique basis for admiralty jurisdiction supports the constitutionality of the attachment provided by Rule B.

Defendant’s second challenge is based on the due process clause claiming that it results in the deprivation of property without prior notice and hearing. Once again, consideration must be given to the rationale for Supplemental Rule B to determine the validity of this argument. We turn again to the case of Polar Shipping since we think it will be presumptuous on our part to try to improve what was said therein. The court stated at page 687:

As we have seen, there are two reasons for the procedure authorized in Supplemental Rule B: to assure a respondent’s appearance, and to assure satisfaction in the case the suit is successful. Both are of great importance in admiralty and maritime cases. Maritime law deals primarily with ships that sail the seven seas. A ship may be here today and gone tomorrow, not to return for an indefinite period, perhaps never. Assets of its owner, including debts for freights, as in this case, within the jurisdiction today, may be transferred elsewhere or paid off tomorrow. It is for these reasons that maritime actions in rem, libelling a ship or other assets of a defendant, Supplemental Rule C, or attachment in actions in personam, Supplemental Rule B, were developed. These reasons are as valid today as they ever were. Particularly in the case of debts and credits, such as the debt for freight that was attached in this case, they are necessary and valid today. In this electronic .age, freights owing to a charterer, such as Sanko, can be transferred instanter, by electronic order, from, say Honolulu, to, say, a numbered bank account in a bank in Switzerland or some other non-maritime haven. The need to attach now and notify later is as great now as it ever was, if not greater. A ship can quietly slip its moorings and depart the jurisdiction. It can easily take with it such tangible property as may be within the jurisdiction. And credits can be quickly transferred elsewhere. These considerations, too, militate in favor of the validity of Supplemental Rule B.

Supplemental Rule B was under attack in Polar because, inter alia, no notice to the defendant is' required before the attachment is levied. The court rejected that contention ruling that due process does not require pre-attachment notice.

Property attached under Supplemental Rule B could be shipped out, otherwise disposed of, or concealed; credits, such as the one involved here, could be collected or quickly transferred from the jurisdiction. Notice prior to attachment would in many instances enable the owner to frustrate judicial enforcement of the lien. In fact, it could defeat the purposes of the attachment.

The court in Polar, supra, after due consideration of Sniadach and its progeny concluded that those decisions do not require holding Supplemental Rule B invalid because it does not provide for pre-attachment notice and hearing. It reasoned that so to hold would negate the “reasons why the ‘old process’ now embodied in the rule was developed and is still needed”. See also Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), where petitioner asserted that his right to a hearing before his property was in any way disturbed was mandated by the holdings in the cases culminating in Sniadach; and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). Contrary to the assertion of the petitioner to the effect that the pre-Sniadach cases required an opportunity to be heard prior to any actual deprivation of private property, the Mitchell court held 416 U.S. at page 611, 94 S.Ct. at page 1902 that those cases “merely stand for the proposition that a hearing must be had before one is finally deprived of his property and do not deal at all with the need for a pretermination hearing where a full and immediate post-termination hearing is provided”. The court added that the rule has been that mere postponement of the judicial inquiry is not a denial of due process, if the opportunity given for ultimate judicial determination of liability is adequate.

Rule B does not provide for the final deprivation of defendant’s property. It has, as already noted, the purpose of securing the appearance of the respondents and to insure satisfaction in the event that the suit is indeed successful. • Thus, mere postponement of judicial inquiry for determination of liability during trial is not a denial of due process.

Defendant also contends that the procedure prescribed by Rule B(l) is insufficient to protect it from a mistaken deprivation of property for the following reasons: (1) the writ was issued by the clerk upon a complaint and an affidavit that defendant could not be found within the district; (2) the writ was issued by the clerk as a matter of course without judicial participation; (3) there is no provision for an immediate post-seizure hearing in the district; (4) Rule B does not require the posting of a pre-garnishment bond by plaintiff.

Rule B requires a verified complaint and an accompanying affidavit stating that defendant cannot be found within the district. This procedure was held sufficient in Polar, supra, the court holding that the affidavit can be by the plaintiff or his attorney, and upon information and belief.

In Merchants Nat. Bank v. Dredge Gen. G.L. Gillespie, 663 F.2d 1338 (5th Cir.1981), cert. denied, 456 U.S. 966, 102 S.Ct. 2263, 72 L.Ed.2d 865 (1982), the court dealt with the issue of the constitutionality of Admiralty Rules C and E. The claimants argued, inter alia, that the Admiralty Rules are constitutionally deficient because they do not provide for the participation by a judge or a magistrate prior to seizure. The court found that the argument falters at two crucial points and concluded at page 1344:

First, the inherent risks of deterioration, attachment of additional liens, destruction, alienation, and conveyance to third parties which are present in the maritime context require that a vessel be subject to immediate seizure to be held in custody to protect and enforce a valid maritime lien. Seizure of a vessel pursuant to a valid lien has been necessary for centuries due to the wandering nature of a ship in commerce. Second, it is questionable whether a judge or magistrate on a pre-arrest basis could fairly consider complicated transactions bearing on the ultimate enforcement of the asserted maritime lien. A denial of the seizure might effectively dispose of the claim on the merits without trial. The lienor would then be denied due process under the Fifth Amendment.
Beginning, then, with the Admiralty rules themselves, we find it clear that the seizure provisions preserve both the rights of the respective parties and the necessities of maritime commerce.

The court in Polar was also faced with an attack to the constitutionality of Rule B of the Supplemental Rules on the grounds that the procedure contemplated therein did not provide for the intervention of a judge or magistrate at the inception of the proceedings but the court reasoned that “[io] require that a judge, rather than the clerk, scrutinize these arguments, ex parte, would add little protection, if any, to the defendants, probably none. The probable product of such a ruling would be more legal boiler plate”.

Although Supplemental Rule B does not expressly provide for an immediate post-seizure hearing, the rule must be read in conjunction with Rule 12 of the Federal Rules of Civil Procedure, which by the terms of Rule 1 and Supplemental Rule A, is made applicable to suits in admiralty. Rule 12(b) provides that any defense, objection, or request which may be subject of determination without the need for trial on the general issues, may be raised before trial by motion. Thus, Rule 12(b) accommodates a challenge to the jurisdiction of the court over the person and, consequently, to the validity of the attachment. Supplemental Rule B should also be read in conjunction with Rule 25 of the Local Rules of our Court, which provides for the release of seizures, by paying into court the amount alloted to be due or by filing an approved stipulation for such amount; with Supplemental Rule E(5) which provides that the attachment may be stayed or the property released by the giving of security or the filing of a stipulation; with Rule E(7) which provides that plaintiff must post security for a counterclaim if the defendant has posted security for plaintiffs claim. It should also be noted that Supplemental Rulé E(2)(b) and Rule 5 of the Local Rules provide for the posting of a bond by plaintiff to secure the costs, expenses and attorney’s fees which may be awarded in the event of a mistaken deprivation of property-

Considering all the above, we hold that the maritime attachment procedure provided by Supplemental Rule B(l) does not violate the Fifth Amendment.

III

We turn now, although briefly, to defendant’s request that we dismiss the first, second and sixth claims for relief pleaded by plaintiff. Defendant contends that we lack jurisdiction to entertain those claims since they are not cognizable maritime claims. Those claims for relief are asserted to collect demurrage charges allegedly owed by defendant. This court has already determined that demurrage charges are considered admiralty and maritime claims within the jurisdiction of the federal district courts. See Gulf Puerto Rico Lines v. Associated Food Co., Inc., 366 F.Supp. 631, 635 (1973); Pennsylvania Railroad Co. v. Moore-McCormack Lines, 370 F.2d 430 (2nd Cir.1966); Hellenic Lines Ltd. v. Director General of India Supply Mission, 319 F.Supp. 821 (S.D.N.Y.1970), aff'd, 452 F.2d 810 (2nd Cir.1971).

IV

As far as we know, the issues decided in Part II of this Opinion are of first impression both in this district and in our Circuit, and since we are not unmindful of the fact that there are strong authorities against each of the positions we have adopted regarding those issues, we will be inclined to certify this matter to the United States Court of Appeals for the First Circuit, if so requested by defendant.

WHEREFORE, in view of the foregoing, defendant’s request to vacate process of maritime attachment and garnishment and motion to dismiss is denied.

SO ORDERED.


source: Caselaw Access Project

author: WILLIAM C. LEE, District Judge.

license: Public Domain

text:
    David M. HAYES, Plaintiff, v. Russell McINTOSH; Joan McIntosh; and McIntosh Energy Company, Defendants.
    Civ. No. F 80-236.
    United States District Court, N.D. Indiana, Fort Wayne Division.
    Jan. 11, 1984.

      Frank A. Webster, Fort Wayne, Ind., Larry J. Burke, Fort Wayne, Ind., for plaintiff.
    Thomas S. Locke, Fort Wayne, Ind., for defendants.
   MEMORANDUM AND ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court for a decision on the merits following a bench trial. Plaintiff brought this action alleging wrongful discharge or discrimination under 29 U.S.C. § 215, et seq. This court having considered the entire record and being duly advised, hereby renders and enters the following Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

Findings of Fact

1. This is a statutory action for wrongful discharge or discrimination under 29 U.S.C. § 215(a)(3). Plaintiff, David M. Hayes, was a full time employee of defendant McIntosh Energy Company.

2. Plaintiff is an experienced and trained semi-truck driver. In late December 1976 plaintiff was offered a position by defendant McIntosh Energy Company. His actual employment with that firm began on or about January 2, 1977.

3. The three defendants consist of one corporation and two individuals. Defendant Russell McIntosh has been the primary owner and/or operator of McIntosh Energy and its predecessor entities, for the past thirty years. Defendant Joan McIntosh is defendant Russell McIntosh’s wife. Her involvement with McIntosh Energy Company up until 1978 consisted of occasional help with the bookkeeping, and since that time Joan McIntosh has had no direct contact with the workings of McIntosh Energy. Defendant McIntosh Energy Company is a proprietorship owned by Russell McIntosh and is engaged in the business of selling gasoline, oil, lubricants and related products on both the wholesale and retail level.

4. During all relevant times, the principal place of business of defendant Russell McIntosh and defendant McIntosh Energy Company was located at 3910 Northrop Avenue, Fort Wayne, Indiana. That site was a “tank farm” consisting of several storage tanks for various “Union 76” brand fuels. Out of that facility operated one semi-tractor trailer and two self-contained fuel trucks as well as a van. From that location, the employees could service the accounts of McIntosh Energy Company which consisted of various independent gasoline dealers and at least two convenience markets which were subsidiaries of McIntosh Energy Company.

5. During his employment at McIntosh Energy Company, plaintiff’s job consisted primarily of driving a tractor trailer to deliver fuel oil and gas to the various business accounts of defendant McIntosh Energy in the Fort Wayne and Huntington, Indiana area. When plaintiff was not driving the semi-truck, he engaged in other work such as removing gasoline pumps and installing new pumps at different service stations; doing minor mechanical repairs and maintenance work on various vehicles owned by defendant McIntosh Energy Company; and general maintenance work on defendants’ premises including lawn mowing and, on at least one occasion, paneling the offices of defendant McIntosh Energy Company.

6. While employed at McIntosh Energy Company, plaintiff’s hours were long and flexible — often beginning in the early hours Of the morning and continuing until 10:00 or 11:00 p.m. On only one occasion during his tenure with that company did defendant work less than forty hours during a given work week. As compensation, plaintiff was paid on a “per load” basis for the time spent driving the semi-truck and on an hourly basis for all non-truck driving work time. At first, plaintiff was paid $13.00 for each “long trip” in the semi-truck; $10.00 for each short trip; and $4.00 per hour for work which did not entail driving the transport. Later, and up until shortly before his departure, plaintiff received $22.00 per load and $5.00 per hour for non-driving work. Combining the hours spent driving and the hours spent in non-driving work plaintiff was averaging $347.00 per week at the time he left the employ of McIntosh Energy Company.

7. In the early part of May 1980, the Wage and Hour Division of the Department of Labor instituted an investigation into the payment practices of defendant McIntosh Energy Company. The purpose of the investigation, precipitated by the complaint of an undisclosed source, was to determine whether or not McIntosh Energy Company was in compliance with the requirements of the Fair Labor Standards Act. The period encompassed within the scope of the investigation was from April 24, 1978 to April 24, 1980.

8. During the course of the investigation, Mr. Raymond Hoffman of the Wage and Hour Division of the United States Department of Labor interviewed plaintiff in the offices of defendant McIntosh Energy Company. The essence of the interview was reduced to a written statement which the plaintiff signed.

9. Based upon the interview and a review of the time sheets, it was determined that plaintiff was not being properly paid. Specifically, it was determined that defendant McIntosh Energy Company was not paying plaintiff and four other employees time and a half for all hours worked over forty hours per week.

10. As a result of defendants’ failure to pay overtime, it was determined by the Wage and Hour personnel that plaintiff was entitled to $2,500.00 in back pay. On June 26, 1980, plaintiff received a check in that amount.

11. While the Wage and Hour investigation was in process plaintiff’s wages were reduced from $22.00 per load to $18.00 per load so that the payment of overtime would not result in an increase in plaintiff’s gross wages. It was further understood by the parties that plaintiff would receive a bonus each month so that his pay would equal $22.00 per load straight time.

12. Prior to plaintiff’s actual receipt of the back pay check, defendant Russell McIntosh suggested on numerous occasions that the check should be returned to him or given to charity. In fact, in the course of a telephone conversation between plaintiff Hayes and defendant McIntosh, defendant reiterated that notion while Raymond Hoffman of the Wage and Hour Division of the Department of Labor was present in defendant’s office. Upon overhearing defendant’s suggestion that the money should be given to charity, Mr. Hoffman informed defendant that a back pay offer had to be a bona fide offer. At a later meeting, Mr. Hoffman counseled defendant from taking any retaliatory action against plaintiff Hayes as a result of the back pay award.

13: The record adequately supports and the court finds that defendant did in fact request that the plaintiff return the back pay check. Plaintiff did not, however, return the check.

14. The day after plaintiff received the back pay check, his wages were cut to the minimum of $3.10 per hour. On that date, June 27, 1980, plaintiff received a pay check for the preceding week in an amount of $139.00 reflecting the minimum wage rate. Plaintiff objected because he had worked that week prior to being informed of the wage reduction. Upon his objection a new check was drawn up in the amount he had been receiving ($347.00). On the same date that the controversy surrounding the wage rate was brewing, defendant Russell McIntosh hired another driver.

15. The wage reduction ostensibly occurred because of defendant Russell McIntosh’s understanding that the minimum wage was all he had to pay his employees under the wage and hour laws. Given the timing of the reduction, the fact that defendant Russell McIntosh expected a “present”, and the underlying circumstances, however, the court finds that the reduction resulted from plaintiff’s refusal to turn over the back pay check and was done to retaliate for that refusal.

16. On June 28, 1980 defendant called plaintiff at home and offered plaintiff his job back at his regular rate of pay. Plaintiff accepted and further inquired into the possibility of taking his accrued vacation time since defendant had already hired another driver. The parties reached an agreement and plaintiff went on vacation for approximately one and one-half weeks.

17. Upon his return from vacation, plaintiff was informed that his wages would be based upon a set rate of $5.00 per hour. That wage would reduce plaintiff’s rate of pay substantially. Plaintiff indicated his unwillingness to accept the reduction and was fired.

18. After his termination, plaintiff made repeated efforts to secure employment. On July 28, 1980 plaintiff went to work as a truck driver for Faylor Milk Transport. Plaintiff was employed to transport two loads of milk per day from Fort Wayne to Muncie, Indiana. He was terminated from that employment on August 22, 1980. According to Susan Faylor, wife of the owner of Faylor Milk Transport, and the person in charge of “hiring and firing”, several factors entered into the decision to terminate plaintiffs employment. Chief among the reasons given was plaintiffs excessive speed in driving and his mishandling of the tractor trailer. It was further felt, however, that by terminating plaintiff, Mrs. Faylor would not receive any more calls from McIntosh Energy Company regarding that employee. While Mrs. Faylor’s testimony on this score cut both ways on the issue considering her testimony as a whole and her demeanor, the court finds that the phone calls from McIntosh were a factor in plaintiff’s termination from Faylor’s Transport.

19. Shortly after his termination with Faylor Milk Transport, plaintiff returned to McIntosh Energy Company in an effort to secure a letter of recommendation. The avowed purpose of the request was so that plaintiff could seek employment with a west coast trucking firm. While “hints” were made about the possibility of plaintiff returning to McIntosh Energy Company should things not work out on the west coast, no affirmative offer of reemployment was made by defendant Russell McIntosh.

20. In mid-November 1980, plaintiff again secured full time employment with Transport Careers in Garrett, Indiana. Transport Careers is a trade school for semi driving and plaintiff is employed as an instructor. Only occasionally does plaintiff do any driving for that company.

21. Plaintiff was first employed by Transport Careers for $4.50 per hour. In December of 1980 his salary went to $5.00 per hour and in October of 1981 his salary was raised to $6.00 per hour. At the time of trial plaintiff was still employed by Transport Careers at that latter rate.

Conclusions of Law

This case presents a variety of issues which must be addressed in order to resolve the controversy between the parties. In an effort to sort out and clarify those issues, the remainder of the judgment will be divided based upon the following considerations. First, because there exists a dispute about the ability of plaintiff to bring this suit, consideration must be given as to plaintiff’s “standing.” If standing is found to exist, the second question becomes one of whether or not liability has been established with respect to the named defendants. If liability is established, the third and final question becomes the amount of damages, if any, to which plaintiff is entitled.

As can be seen, the foregoing issues necessarily evolve from one another. Because the question relating to damages need only be answered if liability is established and because the issue relating to liability need only be addressed if standing is found to exist, it is to the issue of standing which the court first turns.

Standing

The essence of plaintiff’s claim rests upon his contention that his firing from McIntosh Energy Company had as its genesis the Wage and Hour investigation. That investigation culminated in an award of back pay and it was that award, in plaintiff’s view, which ultimately led to his retaliatory discharge. Defendants, while denying that the discharge occurred for other than legitimate reasons, argue that plaintiff has no standing to bring this action inasmuch as plaintiff does not fall within the protection of the relevant statute — 29 U.S.C. § 215(a)(3).

So far as pertinent, 29 U.S.C. § 215(a)(3) provides:

(a) ... it shall be unlawful for any person ...
4s 4c sfc sjs 4s 4:
(3) to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding ...

29 U.S.C. § 215(a)(3). Assuming for the moment that plaintiff was in fact discriminated against, the question with regard to standing becomes one of whether or not plaintiff falls within the protection of the above quoted statute. It is clear that plaintiff did not file a complaint with the Wage and Hour Division of the Department of Labor nor did plaintiff initially institute the proceeding which ultimately led to his receipt of a back pay award. What is not so clear, however, is whether or not plaintiff falls within the ambit of the statute either because he “instituted any proceeding” or because he has “testified ... in any such proceeding.”

Though a strict reading of 29 U.S.C. § 215(a)(3) suggests that plaintiff does not fall within the class protected by that statute, the court is nevertheless of the view that plaintiff should receive the benefits of the Act. This conclusion rests upon this court’s review of the case law (such as it is) and the Congressional purpose behind the enactment of the statute.

The issue of standing under 215(a)(3) has been the subject of few reported decisions. Presumably this is a result of the fact that prior to the 1977 amendment to section 216(b), a serious question existed as to whether or not a private right of action existed under section 215(a)(3) of the Wage and Hour laws. See e.g. Reeves v. International Telephone & Telegraph Corp., 616 F.2d 1342 (5th Cir.1980); Bush v. State Industries, Inc., 599 F.2d 780 (6th Cir.1979). Because it was unclear as to whether a private right of action existed, the vast majority of cases of this nature were brought by the Secretary of Labor and it would be rare indeed for that office to initiate litigation on behalf of one who had not actually filed a complaint with the Wage and Hour Division.

In advancing the argument that standing exists in this case, plaintiff principally relies upon the decisions in Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179 (8th Cir.1975) and Wirtz v. Ross Packaging Co., 367 F.2d 549 (5th Cir.1966), which presented factual situations analagous to those of the case at bar. While both cases at least facially support plaintiff’s position they are not dispositive.

In Brennan, the Department of Labor conducted an investigation which revealed that nine employees of defendant Maxey’s Yamaha were due overtime wages. Upon the government’s urging, Maxey made out back pay checks to those employees and proceeded to request at least five of the employees to endorse the checks and return them to the company as a “loan.” One employee refused to do so and proceeded to quarrel with the owner who, in turn, fired her. The United States Court of Appeals for the Eighth Circuit found the discharge to be a violation of 29 U.S.C. § 215(a)(3).

Similarly, in Ross Packaging, after a Wage and Hour investigation of defendant’s business revealed violations of Title 29, the defendant corporation agreed to make restitution of the wages unlawfully withheld. Receipt forms were prepared to evidence payment of the deficiencies which many of the employees signed even though they had not in fact been paid. Three who refused to participate in the scheme were promptly discharged. The Fifth Circuit Court of Appeals sustained the district court’s conclusion that a violation of section 215(a)(3) had been made out.

As can be seen, the facts underlying the . decisions in Brennan and Ross Packaging are somewhat analagous to those involved in this case. But it cannot be said that those cases are decisive on the question of standing. This is so because standing visa-vis what constitutes the “initiation of a proceeding” or “testifying in a proceeding” was not addressed by either court. Nor does either case make clear the extent of involvement of the aggrieved parties in the Department of Labor investigation. It could be supposed that in both cases the aggrieved parties were only tangentially involved in the investigation for in Brennan the court intimated that the employee’s “discharge was a direct result of her insistence upon receiving retroactive benefits [back pay] required under the Act.” Id. at 181, and the court in Ross Packaging indicated that the discharge resulted immediately after the employees “insisted upon payment of their back wages before signing their receipt forms ...”. Id. at 550. But that is supposition which the court need not make for other decisions point to the conclusion that standing should exist in this case.

It has been stated that “where the immediate motivating factor for an employee’s discharge is the employee’s assertion of statutory rights under the Act either officially or in complaints at work, the discharge is discriminatory ... ”, Bonham v. Copper Cellar Corp., 476 F.Supp. 98, 103 (E.D.Tenn.1979) (emphasis added), within the meaning of section 215(a)(3). It has further been stated that where an “employee had given a statement to the Department of Labor investigation during the course of his investigation of defendant’s business”, a positive and overt action had been taken and that employee was to be “protected by Section 15(a)(3) of the act.” Wirtz v. C.H. Valentine Lumber Co., 236 F.Supp. 616, 618 (E.D.S.C.1964), citing Mitchell v. Equitable Beneficial Life Health and Accident Co., 34 CCH Lab. Cas. 71, 428 (D.N.J.1958).

In the present matter, as the findings of fact make clear, plaintiff made several efforts to secure his just desserts. First, plaintiff spoke with an investigator from the Department of Labor and signed a statement relating to his entitlement to overtime. Second, plaintiff objected to, and balked at, the suggestion that the check should either be returned as a gift or given to charity. Third, and prior to his discharge, plaintiff informed Mr. McIntosh of his belief that a reduction in his wages to the minimum pay rate was illegal and further informed Mr. McIntosh that he would contact the Wage and Hour Division about the circumstances. These activities in the court’s view constitute sufficient “positive and overt” acts within the meaning, and protection, of section 215(a)(3) so as to permit plaintiff to bring this suit.

The purpose behind the enactment of the Wage and Hour provision lends further support to the conclusion that present plaintiff had standing to bring this action. The intent of Congress in enacting section 215(a)(3) was summarized by the United States Supreme Court in Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 232, 4 L.Ed.2d 323 (1960), as follows:

The central aim of the Act was to achieve, in those industries within its scope, certain minimum labor standards____ Congress did not seek to secure compliance with prescribed standards through continuing detailed federal supervision or inspection of payrolls. Rather, it chose to rely on information and complaints received from employees seeking to vindicate rights claimed to have been denied. Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances____ By the proscription of retaliatory acts set forth in § 15(a)(3) [29 U.S.C. § 215(a)(3) ] ... Congress sought to foster a climate in which compliance with the substantive provisions of the Act would be enhanced.

Id. at 292, 80 S.Ct. at 335 (citations omitted). The 1977 Amendment to section 216(b) which codified a private right of action further solidifies the notion that Congress intended the statute to have a far reaching effect. Far enough, in fact, that at least one court has held that the proscription of 215(a)(3) against retaliatory discharge extends to the spouse of a complainant. Marshall v. Georgia Southwestern College, 489 F.Supp. 1322 (M.D.Ga.1980).

So if 29 U.S.C. § 215(a)(3) is intended to protect one who complains officially or at work, Bonham, supra; if it protects an employee who has given a statement, C.H. Valentine, supra; and if it protects the spouse of a complainant, Georgia Southwestern College, supra, then it must protect present plaintiff. “Otherwise the purposes of the statute could be subverted through indirect retaliations with impunity.” Georgia Southwestern College, supra at 1331.

Were standing not found to exist in this case, all beneficiaries of a Department of Labor investigation would be stripped of the protection afforded under the Act unless each and every one of them instituted the investigation or the Secretary decided to pursue a complaint. Certainly Congress had more than that in mind in enacting 29 U.S.C. § 215(a)(3). Accordingly, the court is of the view that plaintiff has standing to bring this suit. Liability

Since this court is of the view that standing exists in this case, the next issue to be determined is whether or not liability has been established. The court is of the view that defendants Russell McIntosh and McIntosh Energy Company are liable to plaintiff.

“The purposes of the Fair Labor Standards Act require that employees throughout the country feel confident that they may bring a complaint to the Department of Labor without being penalized by their employers.” Goldberg v. Bama Manufacturing Corp., 302 F.2d 152, 156 (5th Cir.1962). “Section 15(a)(3) violations involve discriminatory treatment of an employee in retaliation for said employee’s exercise of his or her rights.” Brennan v. Braswell Motor Freight Lines, Inc., 396 F.Supp. 704, 707 (N.D.Tx.1975). Prohibited retaliation under the Act may take the form of either .discrimination at the job site or discharge from employment. 29 U.S.C. § 215(a)(3). “Where the immediate cause of either discrimination treatment or the discharge of an employee was the assertion of a statutory right under the Fair Labor Standards Act, such treatment or discharge is prohibited by section 15(a)(3).” Braswell Motor Freight, supra at 707, citing Bama Manufacturing, supra.

The facts underlying the present case suggest that plaintiff was discharged in retaliation for his refusal to make concessions with respect to the back pay check. The timing of the underlying events leads unerringly to that conclusion.

Prior to the actual receipt of the back pay award it was suggested to plaintiff that he either return the check as a gift or he donate the award to charity. Substantial evidence supports the conclusion that that suggestion was made. Immediately after the receipt of the back pay check, and after plaintiff made it clear in no uncertain terms that he was going to keep that which was rightfully his, defendant Russell McIntosh cut his pay to minimum wage. While defendants suggest that the reduction was legitimate insofar as it complied with the minimum wage laws, the court is of the view that the reduction evidenced a concerted effort to retaliate against plaintiff for taking the check, first, because there would be no reason to detract from that stance were it legitimate, and second, because the reduction came immediately upon the heels of plaintiffs decision to keep the check. Also of concern is the fact that at the time the dispute over the check arose, Russell McIntosh hired another driver to do the same job plaintiff had been doing undisputably well up until that time. Further, after plaintiff took his vacation, he was offered continued employment at a reduced wage of $5.00 per hour. Little wonder plaintiff did not desire to continue the employment with McIntosh Energy Company.

As was touched upon in the section relating to standing, the facts underlying the discharge in this case are analagous to those presented to the courts in Maxey’s Yamaha and Ross Packaging. In both cases, the courts found the discharges to be retaliatory, where, as here, the discharge followed quickly upon the heels of a dispute over a back pay award. As in Ross Packaging and Maxey’s Yamaha, plaintiff’s discharge was a direct result of his insistence upon receiving retroactive benefits required under the Act. It matters not whether a scheme is found to exist so long as plaintiff’s protest resulted from a reasonable belief that defendants’ conduct was unlawful. Maxey’s Yamaha, supra at 181.

In the present matter, the court is of the view that the facts establish that plaintiff’s discharge resulted from his legitimate insistence upon retaining the back pay award. Plaintiff reasonably believed that defendants’ conduct was unlawful and plaintiff persisted in demanding that to which the Department of Labor had found to be due and owing plaintiff. Such insistence is protected from reprisals. This is true regardless of the existence of other grounds for discharge, Bama Manufacturing, supra at 154, though the present record does not support a finding that plaintiff was less than an exemplary employee.

“Furthermore, a former employee is clearly protected against any type of harassment after employment has ended.” Bonham, supra at 103. “Under the law, employers cannot be permitted to punish former employees by seeking to have them ‘black-listed’ by potential employers.” Id. citing Dunlop v. Carriage Carpet Co., 548 F.2d 139, 147 (6th Cir.1977). Here, defendant Russell McIntosh, upon learning that plaintiff was employed by Faylor Transport, contacted Susan Faylor of that firm on four to five occasions suggesting that she might be sued by plaintiff if Faylor Transport paid plaintiff on a “per trip” basis. While these communications were somewhat ignored by Mrs. Faylor, it was thought that among the benefits of terminating plaintiff's employment with Faylor Transports was the fact that these communications from Russell McIntosh would cease. More importantly, in the court’s view these communications further evinced defendant Russell McIntosh’s intent to retaliate against plaintiff in violation of 29 U.S.C. § 215(a)(3).

Taken in balance, the court is of the view that defendants Russell McIntosh and McIntosh Energy Company terminated plaintiff in retaliation for protected activity. As such, those defendants violated section 215(a)(3) and are liable to plaintiff for the wrongful termination.

Damages

Having determined that plaintiff has standing to bring this suit and having determined liability in favor of plaintiff the last question becomes what remedy should be given plaintiff for defendants’ wrongdoing.

“Any employer who violates the provisions of section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment reinstatement, promotion, and payment of wages lost and an additional amount as liquidated damages.” 29 U.S.C. § 216(b) (emphasis supplied). “Generally, in order to carry out the purposes of Section 215(a)(3) by freeing employees of the fear of economic retaliation, the discharged employee should be restored, as nearly as possible, to the same situation he would have occupied if he had not been discharged.” Bama Manufacturing, supra at 156. In most (but not all) cases “this requires both reinstatement and reimbursement.” Id.; generally Mitchell v. Robert De Mario Jewelry, 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960).

In the present matter the court is of the view that while reimbursement is in order, reinstatement is not. The principal reason for this conclusion stems from the fact that the business of the employer is a small one. The evidence adduced at trial made clear that plaintiff and defendant Russell McIntosh worked in close proximity to each other on a daily basis. Even without regard to who is wrong in fact, it is clear that any sort of viable working relationship between the parties is presently impossible. Whatever bitterness might have existed between the parties prior to this lawsuit could only have been exacerbated during the pendency of the litigation. To place the parties once again in a working environment in the court’s view would not be in the best interests of either party. See e.g. Marshall v. Mardels, Inc., 84 L.C. 48,411 (E.D.N.Y.1978); Hodgson v. Winn’s Stores, Inc., 78 L.C. 47,353 (S.D.Tex.1972).

While the court is of the view that reinstatement would be inappropriate, the court is also of the view that reimbursement is necessary to effectuate the purposes of the Act. With respect to lost wages, plaintiff claims lost wage damages in the sum of $15,074.43. Plaintiff further urges that that sum be doubled by allowing liquidated damages and further requests attorney fees and costs. For their part, defendants urge that damages should be nominal and that liquidated damages should not be awarded.

Leaving aside for the moment the questions of liquidated damages, attorney fees and costs, the wages or compensation owed the plaintiff must first be determined. Plaintiff argues that he should receive as back pay the difference between what he made from the time he left McIntosh until the time of trial and what he would have made during the same period had he been employed by McIntosh Energy. Defendants, on the other hand, suggest that damages should be limited given the fact that plaintiff did receive employment within a short time after leaving the employ of McIntosh Energy.

This court does not totally agree with either parties’ position. Plaintiff’s claim that damages continue of necessity until the time of trial is troublesome because of the potential for misuse by discharged employees. Such employees would have no incentive to conduct themselves in such a way as to retain any position they might secure. Instead, the employee would be free to look, perhaps indefinitely, to his prior employer to pay for any gaps in employment and, in effect, the employer would become an insurer of the employee’s salary.

Nor does this court believe that, in this case, liability for damages terminated immediately upon plaintiff’s employment with Faylor Transport. True, some courts have held that full time permanent employment discharges a former employer’s liability for wrongful discharge, e.g. Marshall v. Great Lake Recreation Co., 25 Wage & Hours Cas. (BNA) 506 (E.D.Mich.1981), and that result seems warranted where the new employment is at a wage rate equal to or higher than that of the former employment. Here, the record makes clear that plaintiffs employment at Faylor was for a lesser amount of pay. And, the fact that defendant Russell McIntosh, through his phone calls to Susan Faylor,' continued his campaign of harassment and may have helped in the decision which led to plaintiffs termination from employment at Faylor, only bolsters this court’s conclusion that defendants’ liability for back pay did not terminate with plaintiff’s commencement of employment at Faylor.

Instead, the court opts for a middle ground. Liability for back pay will extend from the time that plaintiff was terminated until the end of calendar year 1980 as the court feels that within this time period (approximately six months), if he had been more diligent, he could have found a more remunerative position even though the market was undeniably tight. Limiting damages in this way, though somewhat arbitrary, is not without precedent. See Winn’s Stores, supra at 47,353-54 (three months limit); Mardels, supra at 48,417 (suggestion that damage evidence could be limited). Moreover, it appears to be in keeping with the underlying tenents of the Wage and Hour Act.

On the basis of the foregoing, the court is of the view that the defendants are liable to plaintiff in the sum of $6,057.88. That sum represents the amount plaintiff would have received from McIntosh Energy for the remainder of calendar year 1980 ($8,823.75) less the amount he did in fact earn from Faylor Transport ($1,300.00) and Transport Careers ($1,465.87) during that same period. See Bullock v. Pizza Hut, Inc., 429 F.Supp. 424 (M.D.La.1977).

Having determined the amount of back pay to which plaintiff is entitled, there remains the question of liquidated damages and attorney fees.

An award of liquidated damages under the Wage and Hour Law is governed by 29 U.S.C. § 260, which provides:

[I]n any action commenced prior to or on or after the date of the enactment of this Act [May 14, 1947] to recover unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended [29 U.S.C.S. §§ 201-216, 217-219, 557], if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended [29 U.S.C.S. §§ 201-216, 217-219, 557], the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 16 of such Act [29 U.S.C.S. § 216],

As the foregoing passage suggests, if the court finds that the defendants’ actions were not done in good faith, or that the employer did not have reasonable grounds to believe that the action taken was not violative of the Wage and Hour laws, the award of liquidated damages is mandatory. Should the court find that the defendants did act in good faith and had reasonable grounds to believe that they were not violating the Wage and Hour laws, the court still has the discretion to award liquidated damages. See Melanson v. Rantoul, 536 F.Supp. 271, 292 (D.R.I.1982); also Hodgson v. Miller Brewing Co., 457 F.2d 221, 227 (7th Cir.1972).

In the present matter, the court has determined not to award liquidated damages. This is so because of the fact that the court believes defendant Russell McIntosh acted in good faith (albeit mistaken) belief that his actions were lawful and that that belief was reasonable. True, the drastic reduction to minimum wage suggested bad faith, but that was only a temporary threat to plaintiff. Instead, defendant desired to keep plaintiff at the reduced rate of $5.00 per hour with the belief that in that way plaintiff could still work as long and still receive the same rate of pay. This “Chinese overtime” as it was labeled at trial would afford plaintiff the opportunity to still take home the same rate of pay and the $5.00 wage rate was certainly above and beyond the $3.10 amount required by law. Thus, the conclusion that defendants’ efforts to reduce plaintiff’s wage were undertaken in good faith and were reasonable.

Though the court is of the view that liquidated damages are not in order in this case, plaintiff’s request for reasonable attorney fees under 29 U.S.C. § 216(b) must be treated differently. This is because “[t]he section respecting attorney fees to the employee’s attorney (under the Fair Labor Standards Act) has been hailed to be mandatory and unconditional.” Pizza Hut, supra at 432, citing Wright v. Carrigg, 275 F.2d 448 (4th Cir.1960). In fact, 29 U.S.C. § 216(b) mandates that “[t]he court ... shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b). “The amount of attorney fees is within the sound discretion of the trial court ...”. Miller Brewing, supra at 228; Pizza Hut, supra at 432.

In the present matter, plaintiff claims attorney fees in an amount of approximately $8,500.00. That calculation is based upon multiplying the amount of hours spent by both of plaintiff’s counsel in this case by an hourly rate of $75.00 per hour. While this court views the hourly rate as reasonable, some concession must be made for the overlap that occurred by having two attorneys represent plaintiff. To compensate for the overlap, the court is of the view that the time spent should be reduced by fifteen percent (15%). Considering this to be a reasonable adjustment, the court calculates the reasonable attorney fees to be $7,426.50.

Given the rather simple background of this case, the fact that the issues were not entirely novel and the fact that only one plaintiff was involved, the court finds $7,426.50 to be reasonable attorney fees in this action. Accordingly, defendant is liable for attorney fees in that amount.

Conclusion

On the basis of the foregoing, it is ORDERED, ADJUDGED and DECREED as follows:

(a) Plaintiff has standing to bring this suit;
(b) Defendants Russell McIntosh and McIntosh Energy Company are liable to plaintiff for back pay in the amount of $6,057.88;
(c) Defendants are further liable for plaintiff’s attorney fees in the sum of $7,426.50; and
(d) Costs to plaintiff.

      . Plaintiff’s experience in the truck driving field went back as far as the Korean War when he was a dispatcher for nine "trucking companies” each of which was comprised of twenty-one trucks. During his nine years in the service he was a truck driver or involved in similar activity for six years. In 1974 he received training from Ryder Trucks and received his Department of Transportation certificate after completing a training course at North American Van Lines.

      . McIntosh Energy Company was incorporated in June of 1981 and prior to that time had been a sole proprietorship operating under the name of McIntosh Oil Company. See notes 19 and 22 infra.

      . At the time of trial, Joan McIntosh was secretary to the personnel manager of the Allen County Public Library.

      . For the first two days, plaintiff rode with another driver and for those two days he was paid $2.50 per hour. After two days it was determined that plaintiff was capable of managing the route by himself.

      . A "long" trip consisted of trips from Huntington, Indiana to Fort Wayne, Indiana while short trips entailed driving to and from McIntosh’s place of business to the Gladieux Refinery in Fort Wayne.

      . In addition to the flat per load basis, plaintiff was paid $4.00 for each drop. Generally, the average trip lasted from three to four hours.

      . It was originally determined that plaintiff was entitled to an award of $2,724.00. After reconsidering the statute of limitations, it was determined that plaintiff was only entitled to $2,500.00.

      . Mrs. Arbogast, defendants’ secretary, likewise testified that Russell McIntosh asked her, in the presence of plaintiff, what she would do were it determined that she was entitled to such an award. She indicated that she would probably keep the check.

      . Aside from the episode with Mary Arbogast, and aside from plaintiff's own testimony, the record supports such a conclusion. In fact, Ray Miller, also a former employee of Russell McIntosh, testified that the same request was made of him. He too kept the check.

      . While all of this was going on/ plaintiff told Russell McIntosh that he would call the Wage and Hour Division. Mr. McIntosh said that that would be fine and further offered to supply plaintiff with that agency's number.

      . While it makes little difference as far as the present matter is concerned, it should be noted that the exact return date was misunderstood by the parties. Plaintiff thought he was to return from vacation on Thursday, while defendant thought plaintiff was to return the previous Monday.

      . By paying plaintiff $5.00 per hour it was thought that plaintiff could work approximately the same amount of time and receive the same rate of pay without running afoul of the wages and hour laws. This was repeatedly referred to throughout trial as "Chinese Overtime.”

      . The court recognizes that a dispute exists over why plaintiff left the employ of defendants and further recognizes that defendants claim that plaintiff decided that he no longer wished to do yard work. The court finds, however, that the real reason was that the $5.00 rate was an unacceptable cut in pay and was retaliatory in nature.

      . Throughout this time plaintiff turned down only one offer and that was with Dana Corporation and involved "team” driving. Team driving involves two drivers and requires that one drive and the other sleep for three consecutive eight hour periods. Plaintiff testified that he simply could not sleep when others drove and without sleep he would be unable to take the wheel when it became his turn to drive.

      . Susan Faylor testified that she received at least "four to five” phone calls from Russell McIntosh.

      . In fact, it is very rare that any instructors drive given the limited nature of their license.

      . The nominal plaintiff was the Secretary of the Department of Labor who filed suit on behalf of the employees.

      . It should also be noted that in that case plaintiff was not even aware that she was entitled to back pay until the due date which suggests that her involvement in the investigation was very limited.

      . This court is of the view that the evidence does not support finding defendant Joan McIntosh personally liable. While McIntosh Energy trucks might be jointly registered in her and her husband’s names, and while the property may be leased in both of their names, nothing in the record suggests that she was involved in any of the transgressions involved in this case. Indeed it is clear that she was not employed by Mclntosh Energy, let alone plaintiff's boss. Thus the court grants defendant Joan McIntosh's "Motion for Directed Verdict” made during the trial of this cause. See e.g. Hodgson v. Winn’s Stores, Inc., 78 L.C. 47352 (S.D.Tx.1972). See notes 2 supra and note 22 infra.

      . See notes 8 and 9, supra.

      . That is, why raise it back to $5.00 per hour?

      . There can be no doubt but that both defendant Russell McIntosh and McIntosh Energy Company are liable for plaintiffs injuries. Under the Fair Labor Standards Act, an “employer” includes "any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). "Whether a person is an employer is essentially a question of fact,” Donovan v. Sabine Irrigation Co., Inc., 531 F.Supp. 923, 929 (W.D.La.1981), and, "each case must be considered in light of the total situation or situations or whole activity to determine whether an employer-employee situation exists.” Wirtz v. Soft Drinks of Shreveport, Inc., 336 F.Supp. 950, 957 (W.D.La.1971). "[Officers of corporations are routinely held to be 'employers within the meaning of the FLSA ... ”, Marchak v. Observer Publications, Inc., 493 F.Supp. 278, 282 (D.R.I.1980), as is the corporation itself. Marshall v. Sam Dell’s Dodge, Inc., 451 F.Supp. 294 (N.D.N.Y.1978). Given the facts of this case, it is clear to the court that both defendant Russell McIntosh and defendant McIntosh Energy Company are liable to plaintiff. See also Shultz v. Clay Transfer Co., 50 F.R.D. 480, 481 (E.D.N.C.1970). See notes 2 and 19 infra.

      . There was some suggestion that the idea of "Chinese Overtime” came from Mr. Hoffman of the Wage and Hour Division. It is important to note that while Mr. Hoffman did not recall such a suggestion, he did not deny that in many cases such a suggestion might be made.

      . Plaintiff had two attorneys in this litigation. Attorney Burke spent 68.5 hours on this case while Attorney Webster spent 48 hours on this case. Adding those figures, 116.5 hours were spent by plaintiffs counsel in this case. Reducing the time spent by fifteen percent (17.48 hrs.) the allowable time equals 99.02 hours. Multiplying those hours by Seventy Five Dollars per hour (99.02 X $75.00) the court finds $7,426.50 to be the reasonable attorney fees in this cause.


text:
    Erma DATES, Plaintiff, v. PHELPS DODGE MAGNET WIRE CO., Defendant.
    Civ. No. F 81-60.
    United States District Court, N.D. Indiana, Fort Wayne Division.
    March 2, 1984.

      Solomon L. Lowenstein, Jr., Fort Wayne, Ind., for plaintiff.
    James S. Haramy and Kim Ebert; King, Downing & Haramy, Indianapolis, Ind., Daniel R. Gordon, Bluffton, Ind., for defendant.
   ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on the “Motion for Summary Judgment” filed by defendant Phelps Dodge Magnet Wire Co. with respect to Count III of its answer and counter-claim. In essence, that counterclaim alleges that this court is without jurisdiction to consider plaintiff's claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. For the reasons set forth below, defendant’s “Motion for Summary Judgment” will be granted and judgment shall be entered in favor of defendant Phelps Dodge.

Factual Background and Procedural Posture

The record reveals the following to be the relevant facts.

Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on March 28, 1980. Plaintiff alleged that defendant Phelps Dodge Magnet Wire Company had discriminated against her, on the basis of her sex. Plaintiff had been placed on lay-off status after a “lock out” occurred when the company and the union were unable to reach an accord with respect to a collective bargaining agreement. After an agreement had been reached, plaintiff was not recalled to work and eventually she was terminated by Phelps Dodge. In response to those allegations, Phelps Dodge contended that worsening economic conditions led to plaintiff’s termination and that her sex had nothing to do with the employment decision.

By letter dated April 4, 1980, the Equal Employment Opportunity Commission notified the plaintiff that her charge was being deferred to thé Indiana Civil Rights Commission for initial action. The deferral to the Indiana Civil Rights Commission was made pursuant to 42 U.S.C. § 2000e-5(d) which provides for work sharing agreements between the EEOC and the appropriate state agency. In the April 4, 1980 letter, plaintiff was advised to fully cooperate with the Indiana Civil Rights Commission. In pertinent part the letter stated:

You are encouraged to cooperate with the agency named above. The final findings and orders of the agency may be adopted by the Commission with no further action taken by the Commission. EEOC regulations require that you notify us of any change in address and keep us informed of any prolonged absence from your current address. Your cooperation in this matter is essential.

(Defendant’s Brief in Support of Motion for Summary Judgment, Exhibit B, record at 22).

According to the Indiana Civil Rights Commission’s findings, an attempt was made on July 11, 1980 to contact plaintiff at the telephone number set forth on her EEOC charge. A family member answered the call and was instructed to have plaintiff contact the Indiana Civil Rights Commission. On that same day, July 11, 1980, companion letters from the Indiana Civil Rights Commission and the Equal Employment Opportunity Commission were sent by certified mail to the plaintiff. The record reveals that plaintiff signed for those letters on July 15, 1980. (Defendant’s Motion for Summary Judgment, Exhibit A, record at 22).

The correspondence sent by the Indiana Civil Rights Commission on July 11, 1980 requested that the plaintiff promptly provide that agency with information substantiating her allegations of discriminatory treatment, including the identities of possible witnesses and documentations of any damages suffered by the plaintiff which related to the alleged discrimination. Additionally, the letter stated:

3. Keep this office informed, in writing, of any change of your address and phone number. If you fail to do so and we are unable to contact you, your case may be closed permanently.'...
You must provide us with the above-requested information within 30 days, or your case will be closed. Enclosed is a copy of a letter from the E.E.O.C. indicating the same.

(Id.). The letter from the Equal Employment Opportunity Commission referred to in the Indiana Civil Rights Commission’s correspondence to plaintiff, also indicated that plaintiff should fully cooperate with both Commissions:

Your above referenced charge of employment discrimination has been filed with both the Indiana Civil Rights Commission (ICRC) and the Equal Employment Opportunity Commission (EEOC). The information requested from you in the enclosed letter from the ICRC is also required by the EEOC. It is therefore, necessary for you to cooperate as requested by by the ICRC. Please note that both EEOC and the ICRC will dismiss your charge if you do not respond to either the EEOC or the ICRC within thirty (30) days of your receipt of this letter.

(Ibid.).

Plaintiff wholly failed to respond in any manner to the request made by the Equal Employment Opportunity Commission and the Indiana Civil Rights Commission. Because of the lack of cooperation, and in accordance with the correspondence received by plaintiff, the Indiana Civil Rights Commission, on September 8, 1980, entered a finding that the plaintiff had failed to proceed on her complaint against Phelps Dodge Magnet Wire. By letter of September 12, 1980, plaintiff was informed of the Indiana Civil Rights Commission’s determination. That letter stated:

The Director of the Indiana Civil Rights Commission finds that the Complainant did not proceed in this cause. A copy of the finding is enclosed, herein.
This decision may be appealed within fifteen (15) days upon receipt of this letter. A timely appeal must be submitted in writing to the Commission office and objections must be stated as specifically as possible.

(Defendant’s Motion for Summary Judgment, Exhibit A, record at 22). On December 3, 1980, the Equal Employment Opportunity Commission issued a “Notice of Right to Sue” to plaintiff which indicated that plaintiff’s charge had been dismissed by the EEOC because:

He failed to provide requested necessary information, failed or refused to appear or be available for necessary interviews/conferences or otherwise refused to cooperate to the extent that the Commission has been unable to resolve your charge. You have had more than thirty (30) days in which to respond to our final written request.

(Id.).

As evidenced by plaintiff’s response to defendant’s motion for summary judgment, she appears to have no quarrel with the above recitation of facts. Instead, plaintiff proffers three additional facts, which in her view, establish factual issues. First, plaintiff asserts that counsel for the plaintiff mailed a “notice of appearance” to the Indiana Civil Rights Commission on September 5, 1980; second, that plaintiff’s counsel filed an appeal on October 3, 1980 regarding the dismissal of plaintiff’s complaint; and third, that the Indiana Civil Rights Commission on November 24, 1980 upheld its original dismissal of plaintiff’s complaint.

For purposes of the presently pending motion for summary judgment, defendant does not dispute the additional facts prof-erred by plaintiff. In fact, it is defendant’s position that these additional facts are not material to the outcome of this litigation and that, therefore, there exists no genuine issue as to a material fact so as to preclude the entry of summary judgment in defendant’s favor. As will be seen, this court agrees.

Legal Discussion

In moving for summary judgment on Count III of its answer and counter-claim, defendant essentially argues that despite plaintiff’s receipt of a “Notice of Right to Sue Letter”, this court is without jurisdiction to consider plaintiff’s claim under Title VII. Defendant argues that by ignoring the agencies’ requests for necessary information, the plaintiff failed to cooperate in the investigation and potential conciliation of plaintiff’s grievance with the defendant, and that such cooperation is a condition precedent to suit in this court. Plaintiff, on the other hand, contends that the only jurisdictional prerequisites for a Title VII action are the filing of a charge with the Equal Employment Opportunity Commission and the receipt of a “Notice of Right to Sue Letter”, both of which have been satisfied in this case. Alternatively, plaintiff suggests that she did, in fact, cooperate with the administrative agencies and that an issue of material fact exists with respect to that cooperation.

While the statutory language of Title VII does not explicitly and clearly make exhaustion of administrative remedies a prerequisite to federal court jurisdiction, “[i]t is well settled that administrative remedies must be exhausted before jurisdiction vests in the federal courts.” Edwards v. Dept. of the Army, 708 F.2d 1344, 1346 (8th Cir.1983); Samson v. Civiletti, 632 F.2d 860 (10th Cir.1980). The policies underlying the exhaustion requirement in Title VII eases are fully discussed in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). There the Supreme Court stated:

Congress enacted Title VII ... to assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex or national origin____ Cooperation and voluntary compliance were selected as the preferred means for achieving this goal. To this end, Congress created the Equal Employment Opportunity Commission and established a procedure whereby state and local equal employment opportunity agencies, as well as the Commission, would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit.

Alexander, supra at 44, 94 S.Ct. at 1017. As the foregoing passage makes clear, the exhaustion prerequisite serves the important purpose of bringing the charged party before the Equal Employment Opportunity Commission as an aid in the effectuation of Title VII’s primary goal — the securing of voluntary compliance with the law.

Most courts which have addressed the exhaustion issue have done so in the context where a plaintiff failed to file a charge with the Equal Employment Opportunity Commission and thereby completely avoided the administrative process. This case differs somewhat from that pattern in that plaintiff did indeed file a charge with the Equal Employment Opportunity Commission but later did not respond to that agency’s or the state deferral agency’s request for information needed to investigate plaintiff’s charges and to attempt to conciliate her grievance. Nonetheless, those cases are enlightening insofar as they underscore the notion that the prime objective of Title VII is to accomplish compliance with the law through conciliation. See Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th Cir.1970); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir.1969). As stated by one court:

An examination of the statutory scheme of Title VII makes it apparent that the purpose of filing a charge of discrimination with the EEOC is to trigger the investigatory and conciliatory procedures of that agency and not to function as a lawsuit itself.... It is only after investigation and failure in an attempt to obtain voluntary compliance with the law that the matter may become the subject of court action____ The federal courts cannot be used to bypass the EEOC machinery. What happens at the EEOC level is of the utmost importance. Court action is limited to that range of issues that would have been the subject matter of the conciliation efforts between EEOC and the employer.

Smith v. Joseph Horn Co., Inc., 438 F.Supp. 1207, 1211-12 (W.D.Pa.1977) (citations omitted). Thus, with conciliation as a primary objective behind the enactment of Title VII, failure to cooperate in an EEOC investigation, no less than failure to file with the administrative agency, serves to thwart the policy underling the enactment of Title VII.

While most cases relating to the exhaustion requirement have done so in the context where a Title VII complainant totally bypasses the administrative agencies, some courts have been faced with factual situations analogous to the case at bar and have uniformly held that failure to cooperate with the appropriate administrative agency during its investigative stage divests a federal court of subject ■ matter jurisdiction because administrative remedies have not been exhausted. For example, in Johnson v. Bergland, 614 F.2d 415 (5th Cir.1980), a Title VII complainant resorted to the administrative process, but his administrative complaint was vacated because he failed to make his generalized discrimination charge more specific. In upholding the dismissal for failure to exhaust administrative remedies, the court stated:

The administrative complaint procedures must be complied with. If they are, and an adverse decision is rendered on the merits of a complaint, then a complainant is entitled to a de novo hearing in federal court. However, if the agency does not reach the merits of the complaint because the complainant fails to comply with the administrative procedures the court should not reach the merits either. Otherwise the complainant might be dilatory at the administrative level knowing that he can get into federal court anyway. See Ettinger v. Johnson, 518 F.2d 648 (3d Cir.1975).

Johnson, supra at 417-18. A similar result was reached in Edwards, supra where the court held:

In the present case, the record clearly shows that Nagel, for whatever reason, failed to provide the EEO officer with the information she needed to take any meaningful action on his complaint. His general allegation of discrimination was therefore not within the purview of 29 C.F.R. § 1613.212. Exhaustion means just that. Nagel managed to travel the entire administrative route without ever making a concrete allegation. In light of this, the district court correctly entered summary judgment.

Edwards, supra at 1347 (footnote omitted).

As did the plaintiffs in Johnson, supra, and Edwards, supra, present plaintiff effectively avoided the administrative process and frustrated any administrative opportunity for investigation and informal grievance resolution. Though plaintiff did file a charge with the Equal Employment Opportunity Commission, her interaction with that agency and the state agency was otherwise nominal and without substance. By her own non-cooperation, plaintiff made it impossible for the administrative agency to attempt to resolve her case and in this respect did not adequately exhaust her administrative remedies so as to warrant the invocation of this court’s jurisdiction. To hold otherwise would clearly frustrate the congressional intent and purpose behind the enactment of Title VII.

In reaching this conclusion, this court is not unmindful of plaintiff’s arguments to the contrary and in particular those relating to her receipt of a Right to Sue Letter and her counsel’s appearance before the Indiana Civil Rights Commission.

With respect to plaintiff’s receipt of a “Notice of Right to Sue Letter”, it should be noted that such a letter functions solely as formal notice that the Equal Employment Opportunity Commission has finished processing the claimant’s case. It does not m itself confer jurisdiction. Rather, 42 U.S.C. § 2000e, et seq., confers jurisdiction over Title VII claims when the plaintiff has afforded an administrative agency the opportunity to informally conciliate the grievance. In this respect, the facts in this case should be distinguished from those in which the claimant did afford the EEOC an opportunity to conciliate the claim, but the EEOC, through some fault or finding of its own, was unable to resolve the grievance. In such cases, courts have held that receipt of a “Notice of Right to Sue Letter” is enough to invoke jurisdiction regardless of the reasons for issuance of the notice. Cf. Beverly v. Loan Star Lead Construction Corp., 437 F.2d 1136 (5th Cir.1971); Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th Cir.1968). Neither the Equal Employment Opportunity Commission’s judgment on the merits of a claimant’s case, nor its failure to investigate and conciliate that case should deprive a plaintiff of a federal court forum. Where, as here, however, the plaintiff herself is at fault for depriving the EEOC of its opportunity to investigate and conciliate her charge, the plaintiff cannot invoke the court’s jurisdiction solely on the basis of the fact that she has received 'notice of her right to sue.

The fact that plaintiff's counsel mailed an appearance to the Indiana Civil Rights Commission on September 5, 1980 does not change this court’s conclusion that plaintiff failed to cooperate with the Commission and in doing so failed to exhaust her administrative remedies. As it was before the Indiana Civil Rights Commission and the Equal Employment Opportunity Commission, the critical time frame for analysis is the thirty day period during which plaintiff was to respond with the information requested by the ICRC and the EEOC. That period expired on August 11, 1980. The pleadings, exhibits, and affidavits in the record show that beyond filing her charge, plaintiff rendered no cooperation to the agencies, requested or otherwise, in investigating and conciliating a grievance. Most notably, plaintiff received two letters on July 15, 1980 which requested necessary information and notified her that her case would be dismissed if she failed to respond to the request within thirty days. Plaintiff neither responded to the request nor tendered an excuse for failing to do so nor did her attorney’s belated correspondence provide that information. The mere filing of an appearance by counsel for plaintiff over three weeks later does not materially affect or excuse the lack of cooperation with agency procedures. In short, the conclusion is inescapable that the plaintiff withheld necessary cooperation from the administrative agencies.

Moreover, the question of whether the Indiana Civil Rights Commission received and considered the appearance of plaintiff’s counsel before originally dismissing plaintiff’s complaint is rendered moot by the fact that an appeal was subsequently filed on plaintiff’s behalf which raised, among other issues, the precise question. The Indiana Civil Rights Commission reaffirmed its original order and dismissed the appeal on November 24, 1980. (See Response to Motion for Summary Judgment, Exhibit E, F). Clearly the Indiana Civil Rights Commission had before it counsel’s appearance. The Commission, like this court, was of the view that an appearance on behalf of plaintiff in no way militated against a finding that plaintiff had wholly failed to cooperate and pursue her administrative remedies.

Taken in balance, this court finds that there exists no genuine issues as to any material fact and that defendant is entitled to judgment as a matter of law. Accordingly, defendant’s motion for summary judgment with respect to its answer and counter-claim must be granted.

Conclusion

The Motion for Summary Judgment on Count III of its Answer and Counter-Claim of defendant, Phelps Dodge Magnet Wire Company, is hereby GRANTED. Judgment is entered in favor of defendant Phelps Dodge Magnet Wire Company.


author: NORMAN W. BLACK, District Judge.

text:
    WALKER COUNTY WRECKER AND STORAGE ASSOCIATION, INC., et al., Plaintiffs, v. WALKER COUNTY, et al., Defendants.
    C.A. No. H-83-1981.
    United States District Court, S.D. Texas, Houston Division.
    March 6, 1984.

      W. Briscoe Swan, Houston, Tex., for plaintiffs.
    James Ludlum, Jr., Ludlum & Ludlum, Austin, Tex., for Walker County, Darrell White, Janell White and Ralph A. Davis.
    Casimir P. Laska, Vaden, Eickenroht, Thompson, Bednar & Jamison, Houston, Tex., for A.E. “Pete” Johnson d/b/a Pete Johnson Wrecker Service and Patsy Johnson.
   MEMORANDUM AND ORDER

NORMAN W. BLACK, District Judge.

This action was brought on March 22, 1983 by the Walker County Wrecker and Storage Association and its individual members against Walker County, Walker County Judge Ralph A. Davis, Walker County Sheriff Darrell White, his wife, Janell White and Walker County Wrecker Operator A.E. “Pete” Johnson and his wife, Patsy Johnson. Plaintiffs allege that Sheriff White’s practice of referring all wrecker business to Pete Johnson violates the Federal Civil Rights Act 42 U.S.C. § 1983, the Sherman Antitrust Act 15 U.S.C. §§ 1-7, the Clayton Antitrust Act 15 U.S.C. §§ 12-27, the Robinson Patman Act 15 U.S.C. § 13c, the Robinson Patman Price Discrimination Act 15 U.S.C. §§ 13-13b, and 21a, and Texas state law.

Currently pending before this Court is Plaintiff Jo Ann Poole’s motion for non-suit, Defendants’ motion to dismiss, and Defendants’ motion for a more definite statement. For the reasons set out hereinafter, Defendants’ motions to dismiss are GRANTED. Since this disposes of the litigation in its entirety, the Court will not address the other pending motions.

Plaintiffs allege that for the past twelve years Sheriff White has been wrongfully referring all official wrecker business to Pete Johnson, thereby excluding them from any wrecker business of the type in question.

Plaintiffs also allege this practice has an effect on interstate commerce because some of the towing originated on an interstate highway. Additionally, some necessary repair parts for the towed vehicles are transported across state lines. Plaintiffs fail to make allegations relating to price fixing, nor do they allege how the situation in Walker County has hindered competition among wrecker drivers in the County.

Federal Civil Rights Act

Assuming, arguendo, Plaintiffs’ allegations are accepted as true, Plaintiffs still have failed to state a claim under 42 U.S.C. § 1983. In Durham v. Jones, 698 F.2d 1179 (11th Cir.1983), a case strikingly similar to the one at bar, the Court stated that:

[i]n order to have a property interest within the protection of procedural due process, a person must have more than an abstract need or desire for a particular benefit ... (citations omitted) While absence of a contractual right to employment does not preclude the existence of a property interest, plaintiff must show a mutually recognized entitlement, as opposed to a unilateral expectation of a benefit, to establish the existence of a property interest, (citations omitted) The district court found that Sheriff Jones has never listed plaintiff’s service and has not used his wrecker service. Consequently, Durham’s interest constitutes a unilateral expectation. Sheriff Jones’ decision has only affected Durham’s ability to receive business from the Walker County sheriff’s department and has not affected either Durham’s right to operate a towing service or his ability to perform this service for other law enforcement agencies.

698 F.2d at 1181. Since Plaintiffs’ allegations in this case only evidence a unilateral expectation of a benefit, Plaintiffs have failed to state a claim. Accordingly, Defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) must be GRANTED.

Sherman Act & Clayton Act Claims

Similarly, Plaintiffs have failed to state a claim under either the Sherman or Clayton Acts. The principle difficulty with these allegations is that Plaintiffs have failed to allege the requisite effect on interstate commerce. It is a well established principle that a claim brought pursuant to the Sherman or Clayton Act must relate to activities that substantially affect interstate commerce. Woolen v. Surtran Taxicabs, 461 F.Supp. 1025, 1033 (N.D.Tex.1978). Plaintiffs claim interstate commerce is affected since some of-the towing originated on an interstate highway. This tenuous allegation is insufficient to sustain a claim under the Sherman or Clayton Acts. See Boro Hall Corp. v. General Motors Corp., 130 F.2d 196 (2d Cir.1942) cert. denied, 317 U.S. 695, 63 S.Ct. 436, 87 L.Ed. 556; Woolen v. Surtran Taxicabs, 461 F.Supp. 1025 (N.D.Tex.1978).

Finally, it does not appear this is the type of activity the Federal Antitrust Laws are intended to reach due to the intra-state nature of the activities complained of. See Foster v. Maryland State Savings and Loan Association, 590 F.2d 928 (D.C.Cir.1978), cert. denied 439 U.S. 1071, 99 S.Ct. 842, 59 L.Ed.2d 37 (1979).

For these reasons, Defendants’ motions to dismiss Plaintiffs’ Sherman and Clayton Act claims is GRANTED.

Robinson Patman Act

Robinson Patman Price Discrimination Act

A careful reading of Plaintiffs’ complaint demonstrates that these claims also must fail. There are no allegations relating to any cause of action under these Acts. Plaintiffs’ claims under these Acts must be DISMISSED.

State Claims

Since all federal claims under which this Court may assume subject matter jurisdiction have been dismissed, this Court declines to exercise pendent jurisdiction over any state claims alleged.

For the reasons set out above, it is

ORDERED, ADJUDGED, and DECREED that this action be DISMISSED in its entirety.

This is a FINAL JUDGMENT.