author: JOHN V. PARKER, Chief Judge.

text:
    Joanna Wurtelle LOWMAN, et al v. CHEVRON U.S.A. INC.
    Civ. A. No. 81-461-A.
    United States District Court, M.D. Louisiana.
    Nov. 7, 1983.

      Thomas J. Wyatt, Shreveport, La., for plaintiffs.
    John C. Christian, New Orleans, La., for defendant.
   JOHN V. PARKER, Chief Judge.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This is a diversity action which began in state court and involves the resolution of questions of Louisiana mineral law which are peculiarly suitable for resolution by Louisiana’s own courts. The defendant, Chevron, however, removed the action to federal court as authorized by the Congress. 28 U.S.C. § 1441(a). Because this court is not authorized to seek clarification from Louisiana’s courts, it must accept jurisdiction and proceed to decide the issues, applying Louisiana law as best it can.

Plaintiffs are the owners of an undivided interest in and are lessors of a tract of land containing some 4,314 acres in Pointe Coupee Parish, Louisiana. The defendant, Chevron, holds a mineral lease upon that tract of land. Portions of the tract are included in six different drilling or production units established by Louisiana’s Commissioner of Conservation. One of the unit wells, the Parlange No. 2, in the Judge Digby Field was completed as a gas producer and has been in continuous production since July 4, 1978. The purpose of this action by the lessees is to obtain partial cancellation of those portions of the Low-man lease which are included in three units, established by the Commissioner of Conservation, and referred to here as the Albritton, Deville No. 1 and Harlaux units. The predicate for the claimed cancellation of the lease is late payment of “shut-in” rental due under the terms of the lease.

The facts are in large part undisputed, and the court hereby adopts as findings of fact all those facts set forth in Paragraph 8 of the pretrial order listed under “Facts Established by Pleadings or by Stipulation or Admission of Counsel.” These facts are extensive and detailed. They will not be repeated in their entirety. Essentially, the established facts show that a portion of the Lowman lease was included in each of six different units established by the Louisiana Commissioner of Conservation. The Parlange No. 2 well was completed in July, 1978, and has been continuously producing since then. The lease contains a “Pugh clause,” which will be quoted infra, providing that production from a unit wbll will maintain the lease in effect only as to that portion actually included within the unit. Delay rentals are required to be paid to maintain that part of the lease which is not included in a unit. This lease was entered into on July 7, 1972, and has a primary term of ten years. It is on the familiar “unless” form providing that the lease terminates one year from the date of its execution and each year thereafter unless the lessee is drilling or there is production or delay rentals have been paid. On July 7, 1979, the anniversary date of the lease, the Parlange No. 2 unit well was producing and the LeBlanc-LeJeune and Wagley-Lowman-Merrick unit wells (each of which included a portion of the Lowman lease) were drilling. Chevron concluded that it would pay “Pugh clause” rentals on all of that portion of the lease not included in one of the units and it did so. On July 7, 1980, the next anniversary date of the lease, the Parlange unit well was still producing, the LeBlanc-LeJeune well had commenced producing, the Lowman-Merrick well (which had replaced the Wagley well as the unit well) was drilling and the Albritton, Deville No. 1 and Harlaux No. 1 unit wells situated on units created by the Commissioner of Conservation were all drilling. Again, Chevron paid “Pugh clause” rentals on all of the acreage of the Lowman lease which was not included in one of those six units.

The Albritton, Deville No. 1 and Harlaux wells were each completed as gas wells capable of production in paying quantities. As each well was completed, it was shut-in. Chevron concluded that it would pay the lessor “shut-in” rental under paragraph 6 of the lease, which will be quoted infra, requiring that such payments be made within ninety days “from the discontinuance of operations.”

Paragraph One of the lease provides that the mailing of lessee’s check to the lessor’s bank shall constitute payment. Chevron computed the acreage of the Lowman lease included within the three shut-in units, Albritton, Deville No. 1 and Harlaux, and on January 19, 1981, mailed a check to the lessor’s bank as payment of “shut-in” rental under the provisions of the lease. Although prepared on January 16, 1981, the check bore the date “07 16 81” which both parties agree means July 16, 1981 — a date which is more than ninety days after discontinuance of operations on each of the three wells at issue. On March 25, 1981, a date more than ninety days following discontinuance of. operations on the last well completed, plaintiffs’ attorney notified a representative of Chevron that the “shut-in” rental check was dated July 16, 1981, and that the lease had terminated as to those portions of the property included in the Albritton, Deville No. 1 and Harlaux units. Chevron prepared a “replacement check” dated April 2, 1981, which it mailed on April 3, 1981. The plaintiffs rejected the amount tendered and returned both checks to Chevron.

Plaintiff takes the position that the lease, as to the acreage in each of the three units at issue, expired on the ninetieth day following “completion” because a post-dated check is not timely payment. Chevron takes the position that, despite the fact that it paid “Pugh clause” rentals, the units established by order of the Commissioner of Conservation did not trigger the necessity for such payments under the terms of the lease, and that the entirety of the lease was maintained in effect by production from the Parlange and, subsequently, the LeBlanc-LeJeune well and consequently that it had no obligation to pay either “Pugh clause” rentals or “shut-in” rentals. Plaintiff argues that Chevron, by making such payments on July 7, 1979, and July 8, 1980, showed that its construction of the lease was that “Pugh clause” rentals were, indeed, due; and since lessors accepted' those payments, the construction of an ambiguous portion of the contract by the parties themselves should be accepted by the court. Alternatively, plaintiff argues that even if the clause is not ambiguous, Chevron’s offering such payments and lessors’ accepting such payments amounts to a reformation of the contract to that extent.

The court makes the following additional findings of fact.

Chevron was in good faith attempting to pay “shut-in” rentals timely when it issued its check number LR24187; the date upon it, “07 16 81,” was a typographical error made by an experienced secretary who intended to date the check January 16, 1981.

Chevron’s representatives had concluded that under the lease provisions production from the Parlange unit well was sufficient under Louisiana law to hold the entire lease without payment of “Pugh clause” or “shut-in” rentals but decided to pay them out of an abundance of caution.

Chevron never indicated to lessors that it was making payments which it believed were not actually owed.

Paragraph two of the lease, the “pooling clause” reads in pertinent part, as follows:

Lessee, at its option, is hereby given the right and power without any further approval from Lessor at any time and from time to time, to pool or combine the land or mineral interest covered by this lease, or any portion thereof, with other land, lease or leases and mineral interests in the immediate vicinity thereof, when, in Lessees’ judgment, it is necessary or advisable to do so in order to properly explore or develop or operate said premises so as to promote the conservation of oil, gas or other minerals in and under and that may be produced from said premises or to prevent waste or to avoid the drilling of unnecessary wells or to comply with the spacing or unitization order of any Regulatory Body of the State of Louisiana or the United States having jurisdiction.
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Lessee shall execute and file for record in the Conveyance Records of the Parish in which the land herein leased is situated a declaration describing the pooled acreage; and upon such filing, the unit or units shall thereby become effective, except that when a unit is created by order of a Regulatory Body, the pooling shall be effective as of the effective date of such order, and no declaration shall be required in connection therewith.

All units created upon the Lowman lease were created by the Louisiana Commissioner of Conservation under the authority, inter alia, of La.R.S. 30:4. Chevron has never created any unit on the Lowman lease and has never filed any document in the conveyance records of Pointe Coupee Parish indicating such a voluntary unit.

Paragraph 14 of the lease is a typewritten addendum containing the “Pugh clause” and it reads in pertinent part as follows:

Anything to the contrary elsewhere in this lease notwithstanding, it is understood and agreed that drilling, mining or re-working operations upon, or production of any mineral from any unit established by a Lessee pursuant to Paragraph 2 hereof shall not serve to maintain this lease as to the non-unitized portion, i.e. that portion of the leased lands not included in any such unit, but only as to the unitized portion, i.e. that portion of the leased lands included in such unit. If any such unit is established, then this lease may be maintained (a) as to the non-unitized portion and (b) separately as to each unitized portion in any manner elsewhere provided in this lease. If Lessee shall elect to maintain this lease by payment of rental, such payment shall be calculated at the rate per-acre provided in or determinable from Paragraph 1 or Paragraph 1(a) hereof and shall be paid (a) on the number of acres of the leased lands in the non-unitized portion and held by a Lessee hereunder, or (b) on the number of acres of the leases (sic) lands in any unitized portion as to which payment is made or (c) both, if Lessee shall so elect; but such rental payment shall maintain this lease in effect only as to that portion of the leased premises not maintained in some other manner provided for in this lease...

Paragraph 4 of the lease, relating to abandonment of wells drilled provides in pertinent part:

Prior to the time that oil, gas or some other mineral is being produced from the leased land or land pooled therewith (or with any part thereof), Lessee may maintain the rights granted during and after the primary term by carrying on operations on said lands or land pooled therewith (or with any part thereof) without the lapse of more than ninety (90) days between abandonment of work on one well and the commencement of operations for drilling or re-working another; and during the primary term such operations may be discontinued and the rights granted maintained by commencing or resuming rental payments, by paying within ninety days (90) from the discontinuance of operations (regardless of the fixed rental paying date) the proportion of the fixed yearly rental that the number of days between the end of said ninety (90) days and the next ensuing rental paying date or the expiration of the primary term bears to the twelve months’ period ...

Paragraph 6 of the lease, relied upon by both sides as a “shut-in” rental clause provides in pertinent part:

After the production of oil, gas or any other mineral in paying quantities, either on the leased premises or, on lands pooled therewith (or with any part thereof), the rights granted shall be maintained in effect during and after the primary term and without the payment of the rentals hereinabove provided for so long as oil, gas or some other mineral is being produced in paying quantities. It is provided, however, that if, after the production of oil, gas or other minerals in paying quantities, the production thereof should cease from any cause, and Lessee is not then engaged in drilling or reworking operations, this lease shall terminate unless the Lessee resumes or restores such production, or commences additional drilling, re-working or mining operations within ninety (90) days thereafter and continues such operations without the lapse of more than ninety (90) days between abandonment of work on one well and commencement of re-working operations or operations for the drilling of another, in an effort to restore production of oil, gas or other minerals.
In the event that any well on the land or on property pooled therewith (or with any part thereof), is capable of producing gas or gaseous substances in paying quantities but such minerals are not being produced, then Lessee’s rights may . be maintained, in the absence of production or drilling operations, by commencing or resuming rental payments as hereinabove provided for in connection with the abandonment of wells drilled ...

The Christmas tree was installed on the Albritton well on September 26, 1980, on the Deville No. 1 well on December 7, 1980, and on the Harlaux well on December 4, 1980. Additional operations were required on each of these wells in order to bring them in as wells capable of producing gas in paying quantities; those operations continued until October 21, 1980, on the Albritton well until December 11, 1980, on the Deville No. 1 well, and until December 15, 1980, on the Harlaux well; and those dates constitute respectively, the date on which operations were discontinued on each of those wells.

The first issue presented for resolution is whether under the facts of this case, Chevron was required to commence “Pugh clause” rental payments following the Commissioner’s order which created the Parlange No. 2 unit well and following production from that well. The facts show that Chevron did, in fact, make those payments on July 7, 1979, and July 7, 1980. It is clear that in the absence of a “Pugh clause,” unit orders of the Commissioner of Conservation do not divide the mineral lease and that operations either on the leased acreage or on lands unitized with it served to maintain the lease in its entirety. Hunter Co. v. Shell Oil Co., 211 La. 893, 31 So.2d 10 (1947); LeBlanc v. Danciger Oil & Refining Co., 218 La. 463, 49 So.2d 855 (1950). This jurisprudence has now been incorporated into Louisiana’s Mineral Code: “... [Operations on the land burdened by the lease or land unitized therewith sufficient to maintain the lease according to its terms will continue it in force as to the entirety of the land burdened.” La. R.S. 31:114. It is clear that under Louisiana law, in-the absence of a “Pugh clause,” production from the Parlange well would continue the Lowman lease in effect as to its entirety without payment to the lessors of any amount except that due as royalty from the Lowman lease’s share of the production from the Parlange well. As article 3 of the Mineral Code recognizes, parties are free to provide for a result different from that contemplated by article 114, which is the purpose of a “Pugh clause.” Paragraph 14 of the lease, the “Pugh clause” in this lease, is not vague or ambiguous. It applies only to “any unit established by Lessee pursuant to Paragraph 2 hereof.” Paragraph 2, the pooling clause, is also not vague or ambiguous. It clearly and specifically grants the right to the Lessee, at its option, to create voluntary units and provides a specific procedure for so doing, including the filing of a declaration in the conveyance records of the Parish of Pointe Coupee. Chevron did not utilize the provisions of Paragraph 2 of the lease and did not create any voluntary units involving the Lowman lease. Accordingly, the “Pugh clause” was not triggered by the creation of units under the orders of the Commissioner of Conservation.

Although we have found only one Louisiana case involving a situation similar to that before the court, the sparse jurisprudence supports that conclusion. In Odom v. Union Producing Company, 129 So.2d 530 (La.App. 2d Cir.1961), reversed on other grounds, 243 La. 48, 141 So.2d 649 (1962), the Court of Appeal construed a similar “Pugh clause” as applying only to a voluntary unit created by the Lessee, not a force pooled unit created by the Commissioner of Conservation. The Supreme Court of Louisiana in its original opinion specifically affirmed that finding of the Court of Appeal but on rehearing, the Supreme Court decided the case on other grounds and did not decide the voluntary unit issue presented. Two federal cases applying Louisiana law, however, have considered this question. Although the language in the leases involved in the two federal cases was not identical to that before this court, the intent was the same, in that voluntary unit authority was granted to the Lessee and the “Pugh clause” made reference only to units formed by the Lessee under that authority. In Smith v. Carter Oil Co., 104 F.Supp. 463 (W.D.La.1952), Judge Porterie commented, “The question is not whether the Lessee could have ‘divided’ the lease, but whether the Lessee did the act which the lease specifies should result in division.” 104 F.Supp. at 467. The court found that the Lessee had not created any unit nor recorded any declaration in the conveyance records to that effect; on the contrary, the only units formed were under the orders of the Commissioner of Conservation. In concluding that the “Pugh clause” payments were not triggered by formation of units under orders of the Commissioner, the court commented:

Although the lease may grant the Lessee the right to divide the lease into two or more leases, affecting segregated portions of the original leased premises, upon the doing of an act solely within the power and option of the lessee pursuant to provisions of the lease, such provision does not render the lease divisible unless and until the contemplated act is done by the lessee... The lessee here did not execute and record a pooling designation and notify the lessor by a certified copy thereof through registered mail, as required by Paragraph 6 if the lessee is to exercise the option thereunder. (104 F.Supp. at 471).

In the case of Bennett v. Sinclair Oil & Gas Co., 275 F.Supp. 886 (W.D.La.1967), affirmed 405 F.2d 1005 (1968), the court considered “Pugh clause” language identical to that involved in the Carter Oil case, supra, and concluded that production from a unit well established by order of the Commissioner of Conservation which included a portion of the leased premises maintained the lease in its entirety without the obligation to pay “Pugh clause” rentals. The agreement authorized the Lessee to establish voluntary units, but no such voluntary units had been established.

While, as noted, no Louisiana cases are directly in point, the lease agreement involved here is not ambiguous, and it is clear that the Lessee has not, in fact, taken the steps necessary to “divide” the lease and thus become obligated to pay “Pugh clause” rentals. In Louisiana the contract is the law between the parties. La.Civ. Code art. 1901; Odom v. Union Producing Co., 243 La. 48, 141 So.2d 649 (1962). This contract clearly provides that the Lessee is granted the option to divide the lease by formation of voluntary units and that if such voluntary units are formed, drilling or production within the voluntary unit will maintain only that portion of the lease which is included within the unit; In order to maintain the acreage outside the unit, the Lessee is obligated to pay “Pugh clause” rentals. Here the lessee did not exercise the option granted to it, and the only units are those established by order of the Commissioner. Under these circumstances, production from the Parlange well had the effect of maintaining the entire Lowman lease; thus Chevron incurred no obligation to pay “Pugh clause” rentals. Hunter Co. v. Shell Oil Co., supra; La. R.S. 31:114.

Plaintiffs do not- seriously dispute this interpretation of the contract or that “Pugh clause” rentals were not actually owed by Chevron. Plaintiffs’ primary argument is that Chevron’s voluntary payments which it identified as “Pugh clause” rentals due on January 7, 1979, and January 7, 1980, together with acceptance of those payments by lessors, constitute a modification of the contract requiring Chevron to pay such rentals upon the formation of units by the Commissioner of Conservation, as well as upon the formation of voluntary units. Plaintiffs rely principally upon the case of Davis v. Laster, 242 La. 735, 138 So.2d 558 (1962). The decision in that case was predicated upon article 1956 of the Louisiana Civil Code which reads: “When the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.” The lease involved in the Davis case was dated January 16,1947, and had a primary term of ten years. In September, 1948, the lessee drilled and completed a gas well which was capable of production in paying quantities. It was, however, isolated from other production and there were no pipeline facilities available; consequently, the well was shut-in. The lessee drilled nine more wells in the general area, all dry holes. In 1952, the lessee released all but 180 acres of the lease. During the period from 1948 to 1958 while the well was shut-in, the lessee paid delay rentals for each of the nine years. The lease contained a provision authorizing payment of “shut-in” royalty in the amount of $50.00 per well when a well was shut-in. Prior to the end of the primary term, the lessee tendered the sum of $18.75, representing plaintiff’s portion of the total shut-in royalty of $50.00, which plaintiff refused. Plaintiff then filed suit to cancel the lease. The delay rentals paid following the shut-in of the well, which lessor had accepted over a period of nine years, were significantly higher than the shut-in royalty would have been. The court held that the provisions of the lease regarding payment of shut-in royalty were ambiguous and concluded that the fact that the lessee elected to pay the higher delay rentals rather than shut-in royalties during the primary term of the lease (but after the well was shut-in) did not preclude the lessee from maintaining the lease beyond the primary term by paying the shut-in royalty before the end of the term. The court relied upon article 1956 and commented that the lessor had no cause to complain when he accepted the higher delay rentals for nine years rather than the shut-in royalty. Accordingly, the court refused to cancel the lease.

The primary reason that Davis v. Laster has no application here is that the language of the contract before this court is not ambiguous. The provisions of Paragraphs 2 and 14, when read together, are crystal clear. The court has found that Chevron determined that under the terms of the lease no “Pugh clause” rentals were due and that no “shut-in” royalty was due following shutting-in of the three wells, the Albritton, Deville No. 1 and Harlaux. Chevron’s express purpose in making the payments was to protect itself from possible claims that it had not lived up to the terms of the lease, and since the amounts involved were relatively small, chose to make those payments rather than risk possible litigation. We conclude as did the court in Smith v. Carter Oil Co. that the lessors ought not to complain that they were paid a sum not due in 1979 and 1980 —“The plaintiff has not shown that he suffered any injury by reason of the defendant’s error or gift in making the tenders.” (104 F.Supp. at 472).

There has been no modification of this lease.

Plaintiffs imply that because Chevron petitioned the Commissioner of Conservation to hold hearings and to establish the units at issue here that the Commissioner’s orders somehow become actions of Chevron amounting to establishment of voluntary units. This same proposition was specifically rejected in Smith v. Carter Oil Co., supra, and this court finds no more merit to that notion. While Chevron certainly may request the Commissioner to hold hearings and to establish units, there is no question but that only the Commissioner, not Chevron, has the authority to establish forced pooling units under La.R.S. 30:1 et seq.

In summary we conclude that the contractual provisions in this lease relative to unitization apply only to voluntary units created by the lessee and that no voluntary units have been created. Since the only units involved are created by order of the Commissioner of Conservation and there is no “Pugh clause” restriction relative to units created by the Commissioner of Conservation, production from the Parlange unit well in 1978 continued to maintain the entire Lowman lease in effect without payment to the lessors of any sum except that due from the production of that well. Accordingly, there was no obligation to pay “shut-in” rentals on the Albritton, Deville No. 1 and Harlaux unit wells because the entire Lowman lease was maintained by production from the Parlange unit well. Hunter Co. v. Shell Oil Co., supra; LeBlanc v. Danziger Oil & Refining Co., supra; Fremaux v. Buie, 212 So.2d 148 (La.App. 3d Cir.1968).

Because of the result which we reach in this case, it is unnecessary to pass upon Chevron’s claims that its postdated check was tendered as an “honest mistake” and that consequently Chevron should be relieved from the harsh consequences of cancellation for failure to timely pay under cases such as Jones v. Southern Natural Gas Co., 213 La. 1051, 36 So.2d 34 (1948); that plaintiffs are estopped from demanding cancellation because of their failure to promptly notify Chevron concerning the post-dated check, thereby giving Chevron an opportunity to rectify the matter; and that the action of the payee bank designated by the lessors in endorsing the check and sending it on to the lessors binds plaintiffs. We express no opinion upon the merits of these claims.

For the foregoing reasons, there will be judgment in favor of defendant Chevron and against the plaintiffs, Joann Wortelle Lowman, et al, dismissing their action.


source: Caselaw Access Project

license: Public Domain

text:
    JACINTOPORT CORPORATION v. GREATER BATON ROUGE PORT COMMISSION.
    Civ. A. No. 81-271-A.
    United States District Court, M.D. Louisiana.
    May 4, 1984.

      Charles D. Marshall, New Orleans, La., for plaintiff.
    Fred H. Belcher, Jr., Baton Rouge, La., for defendant.
   JOHN V. PARKER, Chief Judge.

This action was brought by plaintiff against the defendant alleging that the defendant had constructed two buoys in the bed of the Mississippi River adjacent to plaintiff’s batture and levee property which impair access to plaintiff’s property from the river. The buoys are used in connection with the mooring of vessels for loading and unloading purposes at the public wharf operated by the commission and leased to Apex Petroleum Fuel and Terminal Oil Company, located immediately down river from plaintiffs property. Plaintiff prayed for injunctive relief and alternatively for money damages. The case has been tried on the merits and submitted for decision.

After the trial the court noted a written stipulation that “the commission is an agency, political subdivision or alter ego of the state of Louisiana” and on February 10, 1984 requested that counsel for both sides brief the issue of whether this action is barred by the Eleventh Amendment.

The Eleventh Amendment to the Constitution prohibits suits in federal courts against a state by citizens of another state and even by citizens of that state. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Eleventh Amendment immunity may be waived by the state, Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), or abrogated by the Congress, Edelman v. Jordan, supra, but only the state itself, not its attorneys, may waive immunity and immunity may be raised at any stage of the proceedings, even for the first time on appeal. Edelman v. Jordan, 415 U.S. at 677, 94 S.Ct. at 1363. Since the immunity defense “sufficiently partakes of the nature of a jurisdictional bar,” Edelman v. Jordan, 415 U.S. at 678, 94 S.Ct. at 1363, the court sua sponte raised the issue upon discovery of the stipulation, despite the fact that the case has been tried on the merits. Both sides have briefed the issue of the status of the Port Commission. The Port Commission has never formally pleaded Eleventh Amendment immunity but it now takes the position in brief that it is the alter ego of the state, that the state of Louisiana is the real party in interest, and that this action is barred. Plaintiff now moves: (1) to withdraw from the stipulation, (2) to amend the pleadings to conform with the evidence and, (3) to add an individual defendant, Mr. Randall Cashio, the President of the Greater Baton Rouge Port Commission.

The first two motions are hereby granted. There is no justice in binding a party to an inadvertent stipulation which may be in error. Coastal States Marketing, Inc. v. Hunt, 694 F.2d 1358 (5th Cir. 1983). That ruling does not, however, resolve the matter.

Where a suit is brought against an agency of a state, it becomes necessary to determine whether the state is the real party at interest, Department of Health & Rehabilitative Services v. Davis, 616 F.2d 828 (5th Cir.1980) and the court “must examine the particular entity in question and its powers and characteristics as created by state law.” Laje v. R.E. Thomason General Hospital, 665 F.2d 724, 727 (5th Cir. 1982). In making this determination the court must look first to the state’s constitutional, statutory and decisional law. Tradigrain, Inc. v. Mississippi State Port Authority, 701 F.2d 1131 (5th Cir.1983).

The Greater Baton Rouge Port Commission was created by Section 29 of Article 6 of the Louisiana Constitution of 1921 (continued as a statute by the provisions of Section 19 of Article 14 of the Louisiana Constitution of 1974). It is granted significant authority, including the power to regulate commerce and traffic within the port area, the power to construct, lease and administer the public wharfs and docks, the power to issue bonds, and the power to expropriate property. Title to all property and improvements vest in the state of Louisiana.

Louisiana courts have repeatedly held that the Greater Baton Rouge Port Commission is an executive department of the state of Louisiana. Miller v. Greater Baton Rouge Port Commission, 225 La. 1095, 74 So.2d 387 (1954) (“The Port Commission is not a corporation but an Executive Department of the State.” Id. at 390. “The Port Commission is an Executive Department of the State, and the term notes or bonds issued by it are the primary obligations of the State____” Id. at 389); See also Greater Baton Rouge Port Commission v. Morley, 232 La. 87, 93 So.2d 912, 915 (1957); Greater Baton Rouge Port Commission v. Watson, 224 La. 136, 68 So.2d 901, 902 (1953).

This court has previously held that the Port Commission is the alter ago of the state and that the Eleventh Amendment bars suits against it in federal court. Missouri Pacific Co. v. Travelers Insurance Co., 281 F.Supp. 100 (E.D.La. [Baton Rouge Division] 1968).

Jacintoport strongly argues that the Port Commission is an independent agency and is independently funded and that the Eleventh Amendment does not bar this action. Plaintiffs cites many comparable statutory powers of the Greater Baton Rouge Port Commission and the Board of Commissioners of the Port of New Orleans and notes that the latter agency has been held to be an independent legal entity not entitled to claim Eleventh Amendment immunity. C.H. Leavell & Co. v. Board of Commissioners, 424 F.2d 764 (5th Cir.1970).

Plaintiffs arguments, although very persuasive, are not accepted for two reasons: (1) the Louisiana jurisprudence cited above holding that the Greater Baton Rouge Port Commission is an executive department of the state — there is no comparable state decisional law regarding the New Orleans port authority, and (2) the prior holding by this court that the Eleventh Amendment bars suits in federal court against the Port Commission. Accordingly, I must conclude that the state of Louisiana is the actual party in interest in this litigation.

Plaintiff seeks, however, to take advantage of the jurisprudence which holds that suits against state officers, even when the suit is directed to the officer’s actions in his official capacity, are not against the state and thus not barred by the amendment. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Plaintiff argues that it should be allowed to join the president of the Port Commission as a defendant against whom the court may grant prospective injunctive relief. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ex parte Young, supra.

Addition of the president of the Port Commission would not be proper here. The action complained of is clearly state action, action taken by the Commission as a whole, not simply by one of its members. Thus, we cannot conclude that the president of the Port Commission is a state official whose actions are outside the scope of his statutory authority or pursuant to that authority that his actions are unconstitutional so as to come within the legal fiction that side-steps the Eleventh Amendment. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); see also Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982).

It is regrettable that the Port Commission did not plead Eleventh Amendment immunity when this case first began, which would have saved much court, lawyer, witness and client time. It is especially regrettable because the evidence received in this court clearly establishes that the Port Commission’s construction work has severely limited access to Jacintoport’s property and has caused a reduction in market value for which plaintiff ought to be entitled to a substantial award. Unfortunately the Eleventh Amendment bars this action, and under dictates of Fed.R.Civ.P. 12(h)(3), the court must dismiss the action even though the jurisdictional defect was not discovered until after the trial on the merits. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978).

Accordingly, plaintiff’s motion to join an additional defendant is hereby DENIED, and this action will be dismissed for lack of subject matter jurisdiction.


text:
    Mrs. Rena DAY v. David LEA, Individually, as Deputy Sheriff of the Parish of St. Helena, and R.D. Bridges, Individually.
    Civ. A. No. 81-827-A.
    United States District Court, M.D. Louisiana.
    May 11, 1984.

      J. Michael LeJeune, Baton Rouge, La., for plaintiff.
    Ben W. Lightfoot, Baton Rouge, La., for defendant.
   FINDINGS- OF FACT AND CONCLUSIONS OF LAW

JOHN V. PARKER, Chief Judge.

In October 1980 plaintiff, Mrs. Rena Day, a sixty-four year old Caucasian woman operated a small grocery store in the rural St. Helena Parish community of Chipóla. At some time during the day of October 7, 1980, the defendant, David Lea, Caucasian, a deputy sheriff for four years, stopped by Mrs. Day’s store and inquired of her as to whether she had seen Mrs. Juanita Porter, a Negro woman who occasionally worked at the store. Upon Mrs. Day’s negative response, Deputy Lea departed, stating that he would check at another place but would return. All three of these individuals were longtime residents of St. Helena Parish and were well-known to each other. During the afternoon of that day, Mrs. Porter came into the store and visited with Mrs. Day who told her to help herself to a “cold drink.” Mrs. Porter secured a bottle of strawberry drink and stepped out in front of the store to drink her strawberry pop and to visit with her sister-in-law, Catherine Glass, who was seated in an automobile parked near the front of the store. Deputy Lea drove up at this time in his sheriff’s vehicle and, without getting out of the car, informed Mrs. Porter that she was to bring her juvenile son to the courthouse in Greensburg on the following day. When Mrs. Porter inquired as to the reason for this request, Deputy Lea replied that the boy, Johnny, was suspected of cutting automobile tires at school.

Up to this point, all the testimony agrees but here it bifurcates.

Deputy Lea claims that Mrs. Porter went to “cussin’ ” and stated that her boy was not guilty and that she would not bring him to the courthouse, that Mrs. Porter proceeded to throw the strawberry drink upon him from a “styrofoam” cup, and that she started running down the road. According to the deputy, he cut her off with his vehicle, dismounted, told her she was under arrest and “got her by the arm,” whereupon Mrs. Porter, declaring that nobody was going to arrest her, broke loose and ran into Mrs. Day’s store.

Mrs. Porter, her sister-in-law, Ms. Glass, and Mrs. Day all testified that Mrs. Porter’s strawberry drink was in a bottle only, no “styrofoam” cup. I believe them.

Mrs. Porter testified that, upon hearing Deputy Lea’s request, she informed him that she would go to the school house immediately, get her son, and deliver him to the courthouse and that she started running up the road toward her automobile, parked at her sister’s house nearby. According to Mrs. Porter, Deputy Lea then pulled his vehicle up beside her, got out of the vehicle, told her to come with him in his car, grabbed her arm and twisted it, thereby spilling her strawberry drink, some of which splashed upon the deputy. Mrs. Porter twisted away from the deputy and ran back to the store. I believe her.

Mrs. Porter rushed into the store, and both Mrs. Day and Reverend James Miller, who was present in the store, heard her exclaim, “Miss Rena, please make Mr. David leave me alone. I don’t want to go with him in his car” (or words to that effect). Mrs. Day was behind the counter near the cash register, and Mrs. Porter ran behind the counter which was four and a half to six feet long and was positioned against the walls so that there was only one way in or out. As Mrs. Day was telling Mrs. Porter to calm down, the red-faced deputy, admittedly “upset,” plunged through the door, “slapjack” (a leather-bound metal weight) in hand, raced behind the counter, and began to reign blows with his “slapjack” upon Mrs. Porter’s arms and head. After the deputy had struck Mrs. Porter several times he yelled, “I told you to get in the car.” Mrs. Porter attempted to twist away but did not attack Deputy Lea or offer any physical resistance. Mrs. Day was imprisoned behind the counter with Mrs. Porter who was so close to her that, according to Reverend Miller, had the deputy missed Mrs. Porter with the “slap-jack” it would have hit Mrs. Day. In the scuffle, Mrs. Day stumbled or was pushed over a stool, hit her head and neck, but somehow managed to clamber over the counter to escape. The ruckus ended when Mrs. Porter agreed to accompany the deputy in his car to the courthouse. Deputy Lea then called for assistance and ten to fifteen minutes later two more deputies, a state trooper and a juvenile officer all arrived, which was probably more “law” than Mrs. Day’s store had seen in many years.

Sheriff R.D. Bridges was sheriff of St. Helena Parish for some thirty-six years. He hired Deputy Lea as a deputy, and Lea was given at least minimum on-the-job training as a deputy sheriff. Sheriff Bridges was not aware that Lea had had an altercation at Mrs. Day’s store until after the entire affair was concluded. There is no evidence indicating that the sheriff personally participated in Lea’s activities on October 7, 1980 at Mrs. Day’s store in Chipóla.

Mrs. Day’s neck, arm and hand continued to pain her and on November 6, 1980, she communicated with her family physician in Baton Rouge whom she saw on November 10, 1980. Physical examination revealed that she was tender in the posterior neck area with some muscle spasm and a twenty to twenty-five percent limitation of motion in the neck. The physician’s impression was severe posterior cervical strain. Some degenerative arthritic changes were shown by X-ray at the C-5-6 and the C-6-7 levels. Conservative treatment, cervical collar and traction, was prescribed with no improvement in the patient’s condition. On December 23, 1980, she was referred to a neurosurgeon who saw her on January 5, 1981. His diagnosis was cervical spondylosis, with some nerve root compromise aggravated by her injury in the fracas at the store. Conservative treatment, cervical collar and cervical traction at home, was again prescribed, with some improvement of neck symptoms but none of the pain in her arm, at first. Her last visit to the neurosurgeon was June 5, 1981 at which time she was asymptiomatic while wearing the collar. The neurosurgeon’s prognosis was that she would continue to improve and would have an uneventful recovery with no permanent disability. Mrs. Day testified that she still had occasional pain at the time of trial and that she still uses traction from time to time, as well as Tylenol for pain from time to time.

Mrs. Day brings this action to recover damages from Deputy Lea, Sheriff Bridges and their insurer.

Plaintiff asserts jurisdiction under 28 U.S.C. § 1343 for violation of her constitutional rights under 42 U.S.C. § 1983. She also asserts pendent state law claims. I find that plaintiff is entitled to recover under § 1983, thus I do not consider the pendent state claims.

42 U.S.C. § 1983 grants a cause of action for damages to any person who under color of state law is deprived “of any rights, privileges, or immunities secured by the Constitution and laws” against the person causing the deprivation. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) teaches that in any action brought under § 1983 the first step is to identify a specific constitutional deprivation. Certainly the fourth and fourteenth amendments grant to Mrs. Day the right to be free of injury caused by a deputy sheriff while she is lawfully standing behind the counter of her grocery store. As the court noted in Shillingford v. Holmes, 634 F.2d 263 (5th Cir.1981):

Physical abuse by police under color of state law may in some circumstances constitute a constitutional deprivation allowing recovery of damages under Section 1983. Jones v. Hildebrant, 432 U.S. 183, 189, 97 S.Ct. 2283, 2287, 53 L.Ed.2d 209, 214 (1977) (White, J., dissenting); Jenkins v. Averett, 424 F.2d 1228 (4th Cir.1970). The right to be free of state-occasioned damage to a person’s bodily integrity is protected by the fourteenth amendment guarantee of due process. Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980). The right has also been premised on the fourth amendment guarantee of “[T]he right of ... people to be secure in their persons,” made applicable to the state by the fourteenth amendment. Jenkins v. Averett, 424 F.2d at 1232.

634 F.2d at 265.

The evidence in this case is undisputed that Deputy Lea did not actively desire to cause harm to Mrs. Day; he was barely aware of her presence, and his counsel, in brief, puts forward the proposition that since the force was not intentionally directed at the innocent bystander, there can be no federal cause of action under § 1983. In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the court held that section 1983 did not provide a cause of action against law enforcement officers who thought that plaintiff was a shoplifter and circulated his photograph to merchants with the information. The defendant finds comfort in Justice Rehnquist’s dictum:

If respondent’s view is to prevail, a person arrested by law enforcement officers who announce that they believe such person to be responsible for a particular crime in order to calm the fears of an aroused populace, presumably obtains a claim against such officers under § 1983. And since it is surely far more clear from the language of the Fourteenth Amendment that “life” is protected against state deprivation than it is that reputation is protected against state injury, it would be difficult to see why the survivors of an innocent bystander mistakenly shot by a policeman or negligently killed by a sheriff driving a government vehicle, would not have claims equally cognizable under 1983.

424 U.S. at 698, 96 S.Ct. at 1159.

Defendant misapprehends the meaning of Paul v. Davis, as well as the reach of § 1983. Counsel seizes upon the above dictum as meaning that no innocent bystander can ever state a claim under § 1983 for negligent injury by a police officer. While not conceding the soundness of that position, see Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (liability under 1983 not dependant on state of mind of the actor but upon the result of the act); Howard v. Fortenberry, 728 F.2d 712 (5th Cir.1984) (“No particular state of mind is required to state a cause of action under § 1983 for violation of fourteenth amendment rights; negligence will suffice.”); Popow v. City of Margate, 476 F.Supp. 1237 (D.N.J.1979) (presenting the precise situation posed by defendant — survivors of innocent bystander negligently shot to death by police officer pursuing a person he thought was a kidnapper held to have a 1983 action against the police officer), it is clear that more than mere negligence is involved in this case. It is well-established that gross negligence or recklessness or callous indifference to the harm inflicted is actionable under § 1983. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Parker v. McKeithen, 488 F.2d 553 (5th Cir.), cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65 (1974).

Here Deputy Lea attempted to arrest Mrs. Porter without a warrant and for no lawful cause, apparently because some of her strawberry drink was spilled upon him. This is not a case where a law enforcement officer in the course of making a lawful arrest accidentally causes injury to an innocent bystander. The facts of this case are that Deputy Lea attempted to unlawfully arrest Mrs. Porter outside of Mrs. Day’s store, that Mrs. Porter broke and ran into the store seeking sanctuary, that Deputy Lea charged into the store behind her, and that in his single-minded determination to physically abuse her with his “slapjack,” he directly caused the injuries to Mrs. Day. Compare Deputy Lea’s actions here with those of the police officer in Lynn v. City of New Orleans Department of Police, 567 F.Supp. 761 (E.D.La. 1983). Surely § 1983 fits this case like a glove. Deputy Lea, acting under color of state law and, in the course of depriving Mrs. Porter of her liberty in violation of the fourth and fourteenth amendments, also recklessly and with complete disregard of the consequences of his unlawful actions, caused physical injury to Mrs. Day in violation of her rights under those same amendments. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Schillingford v. Holmes, 634 F.2d 263 (5th Cir.1981); Parker v. McKeithen, 488 F.2d 553 (5th Cir.), cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65 (1974).

Deputy Lea is clearly liable to Mrs. Day under § 1983.

Plaintiff also seeks recovery against Sheriff Bridges upon the notion that Deputy Lea was inadequately trained and released upon the public. The evidence does not support such a finding, and since there is no respondeat superior liability under § 1983 there is no liability upon the sheriff. See Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978).

This brings us to the question of damages. Mrs. Day has not sustained a severe injury, although she did undergo a frightening experience which caused physical injury to her and she was deprived of rights secured to her under the Constitution by at least gross negligence and the recklessness of Deputy Lea. Her medical expenses total $183.00; she was seen by her physicians about seven times, and she suffered semi-regular physical pain for six months or so with some residual at the time of trial. Her neurosurgeon, however, expected full recovery with no permanent aggravation of her arthritic condition. For her physical injuries and pain and suffering, she is entitled to an award of $5,000.

. For violent deprivation of her right to be free of state imposed physical injury while peacefully minding the store, she is entitled to an award of $10,000.

Plaintiff has prayed for punitive damages, in addition to compensatory damages. Such damages are available in a proper case under § 1983, and a proper case is made out when the defendant’s conduct involves reckless or callous indifference to the plaintiff’s federally protected rights, as well as when it is motivated by evil motive or intent. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). The evidence here clearly justifies punitive damages. The very purpose of an award for punitive damages is, as the term implies, to punish the defendant for his egregious conduct as well as to discourage him and others like him from any repeat performances. Smith v. Wade, 103 S.Ct. at 1639. Mrs. Day is entitled to punitive damages against Deputy Lea in the amount of $10,000.

As the prevailing party in this § 1983 action, Mrs. Day is also entitled to an award for attorney fees under 42 U.S.C. § 1988. Counsel for plaintiff shall, within ten days, submit the information required by Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), so that an appropriate award for attorney fees may be calculated.

There will be judgment herein in favor of plaintiff, Mrs. Day, and against the defendants, Deputy Lea and American Druggists Insurance Company, in the amount of $15,-000 compensatory damages and an additional $10,000 in punitive damages together with interest according to law. There will be judgment in favor of Sheriff Bridges dismissing the action against him.

      . At no time has the defendant ever indicated for what reason Mrs. Porter was "under arrest” or what law she allegedly violated.

      . Even if Deputy Lea had been making a lawful arrest for the misdemeanor of pouring strawberry drink on a deputy sheriff, the evidence in this case demonstrates unnecessary and abusive force. To attack an unarmed woman with a "slapjack” in callous disregard of the potential for injury to Mrs. Day, when the simple alternative of calling for additional help or even of waiting Mrs. Porter out was available, is outrageous conduct in itself.

      . Deputy Lea’s obdurate attitude is well illustrated by his insistence that he did not hit Mrs. Porter too hard "because I didn't knock her down."


author: STUART, Chief Judge.

text:
    Donna PHILLIPS, Plaintiff, v. Daniel GREGG, et al., Defendants.
    Civ. No. 83-31-D-1.
    United States District Court, S.D. Iowa, Davenport Division.
    May 16, 1984.
    Marc B. Moen, Rate, Nolan, Bohanan, Moen & Lucas, Iowa City, Iowa, for plaintiff.

      Richard C. Turner, U.S. Atty., S.D. Iowa, Christopher D. Hagen, Asst. U.S. Atty., Des Moines, Iowa, Michael F. Lefkow, Asst. Regional Labor Counsel, Chicago, 111., for defendants.
   RULING AND ORDER ON PENDING MOTIONS

STUART, Chief Judge.

The Court has before it two motions filed by defendants on November 7, 1983: (1) a motion to dismiss, or in the alternative for summary judgment, and (2) a motion to reserve the issue of plaintiffs right to a jury trial. These motions came on for hearing on February 10, 1984, at which time the parties were given an opportunity to file additional material in support of their respective positions. The final submission was filed April 3, 1984, and the motions are now ready for ruling.

In this lawsuit, plaintiff, a former postal service employee, sues five individuals who at the time in question were also employees at the Iowa City, Iowa, postal service installation. In Count I, plaintiff alleges that defendants fraudulently represented to her that certain work absences on her part were approved and properly documented, and later wrongfully used those absences as a basis for discharging her from employment. In Count II, plaintiff alleges that defendants’ conduct occurred at a time when defendants knew her husband was terminally ill, and that their conduct was outrageous and constituted intentional infliction of emotional distress on plaintiff.

Defendants have moved for dismissal or for summary judgment on two grounds, the first of which is an assertion of absolute immunity under Barr v. Mateo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), and Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). In this case, plaintiff’s complaint alleges no constitutional violations. The law is clear that, absent an allegation of a tort of constitutional magnitude, federal officials are entitled to absolute immunity for ordinary torts committed within the scope of their jobs. Barr, 360 U.S. at 571-75, 79 S.Ct. at 1339-41; Wallen v. Domm, 700 F.2d 124, 125-26 (4th Cir.1983); Claus v. Gyorkey, 674 F.2d 427, 431 (5th Cir.1982); George v. Kay, 632 F.2d 1103, 1105-06 (4th Cir.1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1738, 68 L.Ed.2d 224 (1981); Miller v. De Laune, 602 F.2d 198, 199-200 (9th Cir.1979).

Plaintiff argues that this immunity does not apply to low-ranking supervisory officials such as the defendants in this case. The Court’s research indicates that plaintiff is incorrect in this assertion. See Wallen, 700 F.2d at 125 (chief of staff at a local Veterans’ hospital); Claus, 674 F.2d at 431 (chief of laboratory services at local Veterans’ hospital); George, 632 F.2d at 1105 (postal inspector).

Plaintiff also contends that the immunity is not available to defendants because they acted outside the scope of their employment in committing the alleged torts. In this regard, the Court notes that the complaint does allege that defendants’ conduct was “beyond their scope of duty and authority”. Therefore, the Court will consider defendants’ immunity defense in the context of their alternative motion for summary judgment rather than their motion to dismiss.

In determining whether a defendant is entitled to absolute immunity, the test is whether the acts complained of were within the outer perimeter of his duties. Barr, 360 U.S. at 575, 79 S.Ct. at 1341; Wallen, 700 F.2d at 125; George, 632 F.2d at 1105. In this regard, it is only necessary that the action of the federal official bear some reasonable relation to and connection with his duties and responsibilities. Claus, 674 F.2d at 431.

Plaintiff notes that the torts she alleges are intentional, and she argues that defendants are not immune because “[cjommitting intentional torts upon plaintiff was not within the scope of defendants’ duty or authority.” Such an argument was rejected by the Fourth Circuit in Wallen, 700 F.2d at 125-26. In Wallen, a federal employee alleged that another federal employee (his supervisor) assaulted him during the course of a discussion concerning the plaintiffs job performance. The plaintiff argued that even if the discussion was generally within the defendant’s line of duty, he was not authorized to assault his subordinates and therefore was not entitled to absolute immunity. The court explained its reasons for rejecting the plaintiff’s argument as follows:

Few government officials are authorized to commit torts as a part of their line of duty, but to separate the activity that constitutes the wrong from its surrounding context — an otherwise proper exercise of authority — would effectively emasculate the immunity defense. Once the wrongful acts are excluded from an exercise of authority, only innocuous activity remains to which immunity would be available. Thus, the defense would apply only to conduct for which it is not needed.
The principal purpose of immunity is not to protect government officials from groundless suits, but to free those officials from inhibitions on their decision-making occasioned by a fear that their actions or underlying motives will later be secondguessed in a court of law;. See Spalding v. Vilas, 161 U.S. 483, 498-99, 16 S.Ct. 631, 637, 40 L.Ed. 780 (1896). It has been determined that the proper and effective administration of public affairs in general, often in the face of false, incomplete or conflicting information, outweighs redress of the occasional wrong caused by an official during activity otherwise within the official’s authority. See Barr v. Matteo, supra, 360 U.S. at 570-72, 79 S.Ct. at 1338-40. Therefore, wrongful activity incidental to an otherwise proper exercise of authority must fall within the immunity claim.
Application of the immunity is not affected by whether the injury was committed in good faith, negligently, or even intentionally. In Barr the acting director of the Office of Rent Stabilization, charged with issuing a libelous press release, was permitted an absolute immunity defense, based on a finding that he acted within the outer perimeter of his duties, despite an allegation that he acted with malice. Barr v. Matteo, supra at 575, 79 S.Ct. at 1341. The majority opinion in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (granting only qualified immunity to officials alleged to have committed constitutional torts), read Barr “to have extended absolute immunity to an officer who was authorized to [perform a particular act], who was assumed to know that the [activity was tortious] and who therefore was deliberately misusing his authority.” Id., 438 U.S. at 495, 98 S.Ct. at 2905.

700 F.2d at 126.

The Court agrees with and adopts the foregoing discussion, and finds it dis-positive of the case at bar. Having examined all the evidentiary material concerning defendants’ actions, the Court finds no conduct which could be deemed to lack a reasonable relationship to defendants’ duties and responsibilities. Therefore, defendants are entitled to a defense of absolute immunity as a matter of law.

Because the Court finds that defendants are immune, it is unnecessary to consider their other ground for summary judgment, or to rule on the jury trial issue.

IT IS THEREFORE ORDERED that defendants’ motion for summary judgment be and it hereby is granted. The Clerk shall enter judgment in favor of all defendants and against plaintiff on all of plaintiff’s claims.


author: BLUMENFELD, Senior District Judge.

text:
    Alta BAUER, Administratrix of the Estate of Royal C. Bauer, and Alta Bauer, Individually, v. JOHNS-MANVILLE CORPORATION, Et Al.
    No. H-80-668 Civil.
    United States District Court, D. Connecticut.
    June 7, 1984.
    Stephen C. Embry, O’Brien, Shafner, Bartinik, Stuart & Kelly, Groton, Conn., for plaintiff.
    Joseph Adinolfi, Jr., Joseph A. O’Brien, Hartford, Conn., for Celotex Corp.
    Joseph P. Kenny, Kenny & Brimmer, Hartford, Conn., for Union Asbestos.
    Patrick J. Flaherty, Cooney, Scully & Dowling, Hartford, Conn., for Owens-Corning.
    Maurice T. FitzMaurice, Joseph R. Lupica, Reid & Riege, P.C., Hartford, Conn., for Owens-Ill.
    Paul W. Orth, John T. Harris, Hoppin; Carey & Powell, Hartford, Conn., for GAF Corp.

      George W. Ripley, Garrity, Walsh, Diana & Wichman, Manchester, Conn., for Keene Corp.
    Robert J. Cathcart, Shipman & Goodwin, Hartford, Conn., for Nicolet Industries.
    Jacob H. Channin, William G. Speed IV, Hartford, Conn., for Armstrong Cork, Armstrong Contracting & Supply Inc. (Armstrong C & S, AC & S, ACANDS, Inc.).
    Peter C. Dorsey, New Haven, Conn., for Fibreboard Paper Products.
    S. Robert Jelley, William Doyle, William Prout, New Haven, Conn., for Eagle Picher.
    Richard Sperandeo, Harold Donegan, New Haven, Conn., for 48 Insulations Corp.
    R. Cornelius Danaher, Robert C. Danaher, Frederick Tedford, Hartford, Conn., for Pittsburgh Corning Corp.
    Dion Moore, Bridgeport, Conn., for Robert A. Keasbey Co.
    Francis J. Wynne, Gould, Killian & Wynne, Hartford, Conn., for Johnson Asbestos Corp.
    Taggart D. Adams, Kelley, Drye & Warren, Stamford, Conn., for Benjamin Foster Co.
    Peter C. Schwartz, Gordon, Muir & Foley, Hartford, Conn., for Johns-Manville.
    Hadleigh H. Howd, Gerald S. Sack, Hartford, Conn., for Johnson Asbestos.
    John R. FitzGerald, James M. Moher, Hartford, Conn., for H.K. Porter Co., Inc. & Southern Textile Corp.
   RULING ON MOTION FOR SUMMARY JUDGMENT

BLUMENFELD, Senior District Judge.

The plaintiff as administratrix brought this suit for damages claiming that her husband died from injuries caused by his exposure to asbestos products manufactured by the defendants. The plaintiff has also asserted a claim in her individual capacity for loss of consortium. One of the defendants, Johnson Asbestos Corporation, has moved for summary judgment on the ground that this entire suit is barred by the statute of limitations; in the alternative, it has moved to dismiss the claim for loss of consortium on the ground that it does not state a claim upon which relief can be granted.

Facts

The plaintiff filed this law suit on October 28, 1980. The plaintiffs decedent first discovered his asbestos-related disease on September 22, 1978 and died on November 26, 1978.

The plaintiff responded to an interrogatory requesting the date that the asbestos-related disease was first discovered by stating: “Mesothelioma was diagnosed on September 22, 1978.” At oral argument, the plaintiffs attorney attempted to create an issue of fact as to the date of discovery. He argued that the doctor had diagnosed the disease on September 22, 1978, but perhaps he did not inform the plaintiffs decedent. However, this hypothesis is not sufficient to create an issue of fact in the absence of an affidavit or other evidence to support it.

Statute of Limitations

The defendant argues that this action is barred by the wrongful death statute of limitations. Conn.Gen.Stat. § 52-555. The plaintiff contends that the wrongful death statute of limitations does not apply to this action; rather, this action is governed by the products liability statute of limitations. Conn.Gen.Stat. § 52-577a. As this suit was filed slightly more than two years after the injury was first discovered, it would be barred by the two-year wrongful death statute of limitations but not the three-year products liability statute of limitations.

When the plaintiffs decedent discovered his injury, and when he died, the products liability statute of limitations did not apply to wrongful death suits. However, before the wrongful death limitations period had expired, the products liability statute of limitations was amended to apply to wrongful death suits. One effect of this amendment was to increase the limitations period for products liability wrongful death suits to three years from the date of discovery of the injury. The defendant argues that this amendment should not be retroactively applied to the plaintiffs suit.

The defendant has cited a number of cases holding that the substantive provisions of the new products liability act are not retroactive. In response, the plaintiff has cited a number of cases stating the general rule regarding retroactive application of statutes of limitation: statutes of limitation are ordinarily considered procedural and are retroactively applied to actions pending on or brought after the enactment of the new statute of limitations. E.g., Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 196, 286 A.2d 308 (1971). However, the plaintiff’s argument did not discuss the exception to the general rule: if the right is created by statute, the statute of limitations is deemed to be a substantive limit on the right rather than a procedural limit on the remedy. Morris Plan Indus. Bank v. Richards, 131 Conn. 671, 673-74, 42 A.2d 147 (1945). This is a wrongful death suit which is not a common law cause of action but a statutory cause of action not recognized by the common law. See Floyd v. Fruit Indus., Inc., 144 Conn. 659, 668, 136 A.2d 918 (1957). Thus the wrongful death statute of limitations would be deemed substantive and would not be retroactively applied.

However, these rules of presumptive intent are not relevant if the statute includes a provision regarding its retroactive effect. Jones Destruction, 161 Conn, at 195, 286 A.2d 308. (“The determination of whether a statute is retrospective presents a question of legislative intent, and where there is no specific provision to that effect, the question becomes one of presumed intent.”) The legislature has clearly expressed its intent that the new products liability statute of limitations should be retroactively applied to cases brought after its effective date, October 1, 1979. Cf. DuBreuil v. A.H. Robins Co., No. N-80-439, slip op. at 2 (D.Conn. July 11, 1983) (applied section 52-577a retroactively to a suit for personal injuries); Colluci v. Sears, Roebuck & Co., No. N-81-276, slip op. at 8 (D.Conn. May 9, 1984) (same). This suit was filed after October 1, 1979; therefore, the new products liability statute of limitations should be applied to the case brought by the plaintiff as administratrix.

No provision of the general statutes not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.

Loss of Consortium

Although the Connecticut Supreme Court has held that a spouse may recover damages for loss of consortium arising from a personal injury, Hopson v. St. Mary’s Hospital, 176 Conn. 485, 408 A.2d 260 (1979), it has not decided whether loss of consortium claims may be recovered when the injuries result in death. A number of courts have held that a plaintiff cannot recover damages for loss of consortium arising from the decedent’s death. Hernandez v. Bristol Hospital, No. H-81-344 (D.Conn. Sept. 1, 1981); Leland v. Chawla, 39 Conn.Sup. 8, 467 A.2d 439 (Super.Ct.1983); see generally Comment, Wrongful Death and Loss of Consortium in Connecticut, 14 Conn.L.Rev. 631 (1982). Contra Hinde v. Butler, 35 Conn.Sup. 292, 408 A.2d 668 (Super.Ct.1979) (loss of consortium arising from death an element of just damages under Conn.Gen.Stat. § 52-555). The rationale of the cases denying recovery is that the theory underlying the wrongful death statute is that the decedent’s losses, and not the losses of the decedent’s relatives, should be compensated. See Foran v. Carangelo, 153 Conn. 356, 359-62, 216 A.2d 638 (1966).

I am persuaded that the Connecticut Supreme Court would not permit the plaintiff to recover damages for loss of consortium resulting from her husband’s death. Hernandez, supra. However, neither of the parties has cited any cases discussing the effect of death on a claim for loss of consortium caused by the decedent’s injuries before his death. While the plaintiff’s husband was still alive but dying from mesothelioma, the plaintiff suffered “the mental and emotional anguish caused by seeing a healthy, loving, companionable mate turn into a shell of a person____” Hopson, 176 Conn, at 493, 408 A.2d 260. As there is no reason to conclude that her husband’s death extinguished the plaintiff’s individual claim for loss of consortium, I will not dismiss her claim for loss of consortium caused by the decedent’s injuries before he died. For the foregoing reasons, the motion for summary judgment is denied and the motion to dismiss is granted as to the plaintiff’s claim for loss of consortium resulting from death.

SO ORDERED.

      . That section provides that:
      In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of.

        . In relevant part, that section provides that:
      No product liability claim as defined in section 52-572m shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered or in the exercise of reasonable care should have been discovered____
      The provisions of this section shall apply to all product liability claims brought on or after October 1, 1979.
      Conn.Gen.Stat. § 52-577a(a) & (f).

      . Before October 1, 1979, the section provided that:
      No action to recover damages for injury to the person or to real or personal property caused by any product in a defective condition shall be brought against one who manufactures, sells, leases or bails any such product but within three years from the date when the injury is first sustained, discovered or in the exercise of reasonable care should have been discovered____
      The provisions of this section shall apply to all actions pending on or brought after June 4, 1976 claiming strict liability regardless of the date of the act or omission complained of.
      Conn.Gen.Stat. § 52-577a(a) & (c).

      . These cases are based on Conn.Gen.Stat. § 55-3:

      . The previous products liability statute of limitations applied to all cases pending on or brought after its effective date, June 4, 1976. See Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 241, 429 A.2d 486 (1980). The present section was initially applicable to all actions pending on or brought after October 1, 1979, 1979 Conn. Acts, ch. 483, § 3, but it was soon amended to apply only to' cases brought after October 1, 1979, 1979 Conn. Acts, ch. 631, § 107. Thus the new statute of limitations has a more limited retroactive effect than the 1976 statute.


author: PLATT, District Judge.

text:
    Thomas L. BROWNE, Jr., Plaintiff, v. N.Y.S. COURT SYSTEM N.Y.S. Supreme Court—Queens Co. Honorable Arthur J. Cooperman, Queens County, File Clerk, Sup. Ct., Queens Co., Defendants.
    No. CV 84-2360.
    United States District Court, E.D. New York.
    July 6, 1984.

      Thomas L. Browne, Jr., pro se.
    Robert Abrams, Atty. Gen., of N.Y., New York City, for defendants; Howard L. Zwickel and Randolph Volkell, New York City, of counsel.
   MEMORANDUM & ORDER

PLATT, District Judge.

Plaintiff, Thomas L. Browne, Jr., who appears pro se, commenced this action by filing a “complaint” against the above named defendants. It is unclear what conduct he alleges wronged him and what relief he seeks. The defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b) on the following grounds: (1) the complaint fails to state a claim upon which relief can be granted; (2) this Court lacks subject matter jurisdiction; (3) this Court lacks in personam jurisdiction; and (4) the plaintiff fails to join a necessary party. For the reasons stated below, the defendants’ motion to dismiss is granted.

The defendants argue that the “complaint” fails to state a claim upon which relief may be granted. We agree. “[T]he complaint should, as a minimum, indicate clearly the defendants against whom relief is sought and the basis upon which the relief sought against the particular defendants. To do less than this is to cause an injustice to persons who are named as defendants in an action.” Mathews v. Kilroe, 170 F.Supp. 416, 417 (S.D.N. Y.1959). Although it has been carefully considered, this complaint, in essence, is unintelligible. There is no allegation by the plaintiff that any of the defendants has caused or threatened to cause him any injury, and there is no indication of what relief the plaintiff seeks from this Court. Since there is not a cognizable cause of action, the complaint must be dismissed.

Even if the complaint were not dismissed on the above ground, this Court would be without authority to entertain the plaintiffs “complaint.” First, under the Eleventh Amendment to the United States Constitution, a State is immune from any actions brought against it in federal court by a citizen of its own State. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). This immunity has been extended to suits against State agencies and officials sued in their official capacity, such as the defendants in this action. Second, Justice Cooperman has judicial immunity from liability for damages. Stump v. Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099, 1107, 55 L.Ed.2d 331 (1978); Pierson v. Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967).

In addition, there is a serious question as to whether this Court has in personam jurisdiction over the defendants. Not all of the defendants have been served and in those instances where service was made, it allegedly was rendered by the plaintiff himself in violation of Federal Rule of Civil Procedure 4(c)(2)(A). Therefore, it appears that the complaint would have to be dismissed on the additional grounds that service was insufficient, Cambridge Mutual Fire Insurance v. City of Claxton, 96 F.R.D. 175, 178 (S.D.Ga. 1982), and because the Court lacks in personam jurisdiction over the defendants.

For the above stated reasons, the plaintiffs complaint is hereby dismissed.

SO ORDERED.

      . The defendants argue that to the extent that plaintiff articulates any grievance at all, it appears to be against “illegal tax collection" and the "water company.” They maintain that this action must be dismissed on the further ground that the plaintiff fails to name a necessary party under Federal Rule of Civil Procedure 19(a)(1). In light of our disposition below, there is no need for us to rule on this issue.


author: BELL, District Judge.

text:
    Sandra L. EAGLE, aka Sandra E. Caliendo, Plaintiff, v. Donald REGAN, Secretary of Treasury, Defendant.
    No. C83-1836.
    United States District Court, N.D. Ohio, E.D.
    July 23, 1984.

      Michael B. Michelson, Frank P. Giaimo, Cleveland, Ohio, for plaintiff.
    Alan J. Ross, Mary Lee Pilla, Asst. U.S. Attys., Cleveland, Ohio, for defendant.
   ORDER

BELL, District Judge.

Plaintiff filed the above-captioned case against defendant pursuant to Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. §§ 2000e-5 and 2000e-16. Her complaint includes five counts, two counts of sex discrimination and the remainder for retaliation claims constituting further acts of discrimination.

Currently before the court is defendant’s motion for partial summary judgment to which plaintiff has responded in opposition. Defendant contends that he is entitled to partial summary judgment on counts one and two of the complaint because plaintiff failed to timely exhaust her administrative remedies and because overtime payments sought in the first count have now been paid which renders this claim for relief moot. Plaintiff contends, however, that summary judgment is not appropriate as to either claim.

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that as a matter of law it is entitled to summary judgment. In reviewing such a motion, a court must consider the pleadings, related documents and evidence and all reasonable inferences in a manner most favorable to the non-moving party. Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Smith v. Hudson, 600 F.2d 60 (6th Cir. 1979), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979); Board of Ed. Cincinnati v. Dept. of H.E.W., 532 F.2d 1070 (6th Cir.1976). A brief summary of the facts follows.

Plaintiff has been a special agent for the Bureau of Alcohol, Tobacco and Firearms (hereinafter BATF) since January 1, 1977. On November 1, 1979, plaintiff notified the Special Agent in Charge (hereinafter SAC) of the Cleveland Office, David Edminston, that she was pregnant. Plaintiff was transferred from one working group to another on December 3, 1979, and met with her new Group Supervisor, Stephen C. Wells, regarding her assignment and duties. At this meeting, plaintiff claims that she was told that she would not be assigned any cases as a case agent because of her pregnancy. For the purpose of this motion, defendant does not dispute this fact.

On December 13, 1979, plaintiff met with Group Supervisor Wells, SAC Francis S. Kenney and Assistant SAC Dan Conroy to discuss her pregnancy. She was told that she would be treated as if she were experiencing any other type of physical disability of similar severity. A copy of the guidelines pertaining to pregnancy from the Federal Personnel Manual was provided to her. Next, she was told that she would have to obtain a statement from her doctor indicating when her physical condition would require that she be placed on limited duty. Finally, Mr. Kenney said that she would be given an assignment to do while she was on limited duty, but that during this period, she would not receive Administratively Uncontrollable Overtime (hereinafter AUO) pay and would have to give up use of her government automobile.

Plaintiff began limited duty on April 5, 1980. Her AUO pay was stopped thereafter and she gave up her government automobile. These benefits were not restored until August 18, 1980 when she returned after maternity leave. Plaintiff had requested on April 2, 1980 that AUO pay be reactivated when she started her maternity leave on July 2, 1980. This request was refused. During her administrative appeal of this matter, it was decided that AUO pay had been mistakenly terminated and reimbursement should be made. Plaintiff received a check from the government but has not received an accounting to verify the amount paid.

Plaintiff contends in her first count that she was discriminated against on the basis of her sex when her AUO pay and government automobile were taken from her. Several incidents are cited by her of agents on temporary disability for reasons other than pregnancy who received AUO pay and retained government automobiles even though their disabilities prevented the agents from performing their full range of duties.

The second count of plaintiffs complaint relates to these same facts and their effect on BATF’s subsequent refusal to promote her in January, 1981. At the meeting of December 3, 1979, previously discussed, plaintiff was informed by Group Supervisor Wells that she would not be assigned any investigations as a case agent during her pregnancy. Plaintiff was promoted to grade GS-11 effective February 1, 1980. The recommendation for her promotion to grade GS-12, however, was returned on January 12, 1981. The reasons given for its return were first, that effective December 1, 1980, the Investigative Analysis System which was the vehicle for promotion until that time was discontinued. Promotions were thereafter in limbo until new guidelines were issued on September 8, 1981. Second, her recommendation for promotion was returned for the reason that it did not support a finding that she had performed a sufficient number of hours of grade GS-12 level work to warrant promotion to that grade.

Plaintiff relies on the second reason as the basis for her charge of discrimination on the theory that had she been assigned more cases, she would have worked enough hours at the grade GS-12 level to warrant a promotion.

Plaintiff contacted Equal Employment Opportunity (hereinafter EEO) Counselor, Michelle Comer, about her discrimination claim on January 20, 1981. Informal negotiations between Ms. Comer and defendant were thereafter undertaken but did not resolve the matter. Plaintiff filed a formal complaint on February 27, 1981 encompassing the allegations contained in the first two claims for relief in her complaint. The date of the most recent alleged discriminatory act was listed as January 12, 1981.

The BATF’s EEO officer issued a proposed disposition of plaintiff’s complaint on March 25, 1983. Plaintiff timely filed this action within thirty days of receipt of that decision.

The first basis raised by defendant in support of its motion for summary judgment is that plaintiff has failed to timely exhaust her administrative remedies which precludes this court from entertaining her claims because of the lack of subject mat-ter jurisdiction. Congress included a separate provision for the redress of federal employment discrimination in the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16. Before a federal claimant may pursue his claim in the courts, administrative remedies in his own agency must be exhausted. Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Gaballah v. Johnson, 629 F.2d 1191 (7th Cir. 1980); Ettinger v. Johnson, 518 F.2d 648 (3d Cir.1975).

As part of the federal provision, the Equal Employment Opportunity Commission was directed to formulate regulations governing the administrative procedures. 42 U.S.C. § 2000e-16(b). Regulations thereafter promulgated, 29 C.F.R. § 1613.-211 et seq., establish a specific time for filing complaints. The agency may accept complaints for processing only if:

(i) The complaint brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe he had been discriminated against within 30 calendar days of the date of that matter____

29 C.F.R. § 1613.214(a)(1)®.

Plaintiff does not contest the fact that pursuant to 29 C.F.R. 1613.214(a)(1)®, a complainant must bring the matter to the attention of the EEO counselor within thirty days of the alleged discrimination. At issue, however, is whether plaintiff fulfilled this requirement.

Defendant contends that the alleged discriminatory acts claimed in plaintiffs complaint occurred on April 6, 1980 in relation to the first claim, i.e., the date when she assumed limited duty and was taken off AUO pay and had to give up her government automobile, and on December 3, 1979 as to her second claim, i.e., the date she was told that she would not be assigned any investigations as a case agent during the pendency of her pregnancy. Plaintiff, on the other hand, claims she did not know she was the victim of discrimination until January 12, 1981 when her recommendation for promotion was returned. At that time, she claims to have begun an investigation and found that other agents suffering temporary disabilities retained AUO pay and government automobiles. She then began the administrative processes within thirty days after she discovered the discrimination.

Plaintiff refers this court to two cases for the proposition that the time limitations under Title VII do not begin to run until the plaintiff knows or should know that she has been the victim of an alleged violation of its provisions. Stafford v. Muscogee County Board of Education, 688 F.2d 1383 (11th Cir.1982); Allen v. U.S. Steel Corp., 665 F.2d 689 (5th Cir.1982). Both of these cases involved private rather than governmental defendants, however, a fact which is of critical importance to the time issue.

In Sims v. Heckler, 725 F.2d 1143 (7th Cir.1984), the court aptly stated the following analysis in determining that the thirty-day limitation of 29 C.F.R. § 1613.-314(a)(1)(i) is a jurisdictional requirement.

It is established that “the United States, as a soverign, is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981), quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Waivers of soverign immunity are to be strictly construed. Reymonds v. United States, 643 F.2d 707 (10th Cir. 1981); Sprouse v. Federal Prison Industries, Inc., 480 F.2d 1 (5th Cir.1973), cert. denied 414 U.S. 1095, 94 S.Ct. 728, 38 L.Ed.2d 553 (1973); Brown v. General Services Administration, 507 F.2d 1300 (2d Cir.1974), cert. granted 421 U.S. 987, 95 S.Ct. 1989, 44 L.Ed.2d 476, affirmed 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 1976).
Valid administrative rules legislative in nature have “the force and effect of law.” Chrysler Corp. v. Brown, 441 U.S. 281, 295, 99 S.Ct. 1705, 1714, 60 L.Ed.2d 208 (1979); see United States v. Nixon, 418 U.S. 683, 695, 94 S.Ct. 3090, 3101, 41 L.Ed.2d 1039 (1974). In the recent case Production Tool v. Employment & Training Administration, 688 F.2d 1161 (7th Cir.1982), this court stated that such rules “are as binding on the courts as any statute enacted by Congress.” Id. at 1165. In order to be accorded this maximum effect, a rule must (1) affect individual rights and obligations, (2) have been promulgated in compliance with statutory procedures under a delegation of legislative authority, (3) not be arbitrary and capricious and (4) be reasonably related to the purposes of the enabling legislation. Production Tool, 688 F.2d at 1165-66.
The 30-day time limitation of § 1613-214(a)(l)(i) was promulgated by the Equal Employment Opportunity Commission pursuant to an explicit Congressional delegation of rule-making authority under 42 U.S.C. § 2000e-16(b). The rule affects individual rights. We believe that the rule is reasonably related to the purposes of the enabling legislation and that it is not arbitrary and capricious. Section 1613.-214(a)(l)(i) is, therefore, “as binding on the courts as any statute enacted by Congress.” Giving the rules the force and effect of law, we hold that it constitutes one of the terms of the sovereign’s consent to be sued and, as such, defines the district court’s jurisdiction.

Id. at 1145-46. The court is aware that the Fifth Circuit has explicitly found the time limitations do not involve the subject matter jurisdiction but rather relate to the merits of the complaint. Oaxaca v. Roscoe, 641 F.2d 386, 391 (5th Cir.1981).

This court believes, as does the Seventh Circuit, that the time limits regulating the Title VII actions against governmental defendants must be strictly construed. The dates in the case before the court upon which plaintiff’s claims of discrimination are based are December 3, 1979 when she was transferred and told that she would not be given case agent duties during her pregnancy, and April 6, 1980 when her AUO pay and government automobile were taken from her. She knew of both decisions and, in fact, was not offended by either at the time. Her first contact with the EEO counselor was on January 12, 1981, after a recommendation for her promotion was returned. This contact was made over a year after she learned she would not be given case agent assignments while pregnant and over nine months after she lost her AUO pay and automobile.

While this court is unwilling to say that a “discovery” rule has no validity in an action such as this, the discovery must relate to the discriminatory act and not to the effect such an act has at some later point in time. See Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980); United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977) (Both cases deal with a continuing violation claim but the court’s analysis is clearly applicable in this matter.) It is undisputed in this case that plaintiff knew her AUO pay and government automobile would be and were taken from her when she went on limited duty. Although she cites incidents where these benefits were not removed for temporary disabilities, she received the same treatment on several occasions when she was suffering a temporary disability. See Affidavit of Stephen C. Wells attached to defendant’s motion at 7-8 and Affidavit of Sandra L. Eagle attached to defendant’s motion at 7. Plaintiff even made special requests prior to limited duty status for continuance of her benefits while on leave which were denied. See Affidavit of Sandra L. Eagle at 6. This is enough to put her on notice of the need for inquiry even if a discovery rule were to apply.

Under their prior system of promotion, BATF agents had to perform a certain number of hours at the next grade level to be eligible for promotion. Plaintiff contends that because she was taken off case agent duties during her pregnancy, she was not thereafter eligible for promotion. However, this was also a single incident capable of complaint within the thirty-day time limit. Plaintiff was promoted under this system to a grade GS-11 on February 1, 1980 and therefore knew of the requirement. See Affidavit of Sandra L. Eagle at 2 discussing this procedure. The effect of the announcement on December 3, 1979 that plaintiff would not be given case agent duties, if discriminatory at all, should have been clear to plaintiff on that date. Accordingly, this claim was also not timely brought to the attention of the EEO counselor.

Due to the finding that plaintiff did not timely pursue her administrative remedies, the second basis raised by defendant for summary judgment need not be considered. It is the finding of the court that partial summary judgment be entered for defendant on counts one and two of plaintiffs complaint on the basis that her failure to timely exhaust her administrative remedies renders this court without subject matter jurisdiction over these claims.

IT IS SO ORDERED.

      . AUO pay is premium pay received automatically as a percentage of regular salary as compensation for work during off-duty hours. Because of the nature of the BATF agent’s job, overtime cannot be administratively controlled. AUO pay reimburses the agent for the substantial amounts of regular overtime duty required by the job.


author: DUPREE, District Judge.

text:
    Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. TRAVELERS TRASH COMPANY, INC., et al., Defendants.
    No. 83-89-CIV-3.
    United States District Court, E.D. North Carolina, Fayetteville Division.
    July 30, 1984.

      Mary A. Auerbach, Office of Sol., U.S. Dept, of Labor, Atlanta, Ga., for plaintiff.
    Harold D. Downing, Fayetteville, N.C., for defendants.
   ORDER

DUPREE, District Judge.

Raymond J. Donovan, Secretary of Labor, brought this action to enjoin defendants from violating the record keeping, minimum wage and overtime provisions of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201, et seq. The Secretary also seeks an award of liquidated damages under 29 U.S.C. § 216(c). The action is before the court on the Secretary's motion to strike defendants’ jury demand. The motion will be allowed.

On October 20, 1983, the Secretary filed the complaint in this action against three of the four named defendants. These defendants filed their answer on November 14 of the same year. However, it was not until February 24, 1984, 102 days later, that defendants served and filed their jury demand. With defendants’ consent and waiver of service, an amended complaint was filed March 8, 1984 adding Travelers Trash Company, Inc., as a party. No answer to the amended complaint having been filed, it would appear that all defendants are relying on the prior answer.

Under Rule 38(b), F.R.Civ.P., a jury demand must be made “not later than ten days after the service of the last pleading directed to such issue.” The failure to serve a timely demand constitutes a waiver of the right. Rule 38(d), F.R.Civ.P.

In this instance, the last pleading directed to the issue was the answer, which was filed on November 14, 1983. Accordingly, under Rule 38, defendants had ten days from that date upon which to serve plaintiff with their jury demand. Rather than meeting the ten-day requirement, defendants’ demand was not served until over 100 days after filing their answer. Accordingly, their demand is not timely and the Secretary’s motion is allowed.

Although the Secretary filed an amended complaint adding a new defendant after both the answer and jury demand were filed, this does not change the result. First, the new defendant has yet to answer the amended complaint, instead apparently relying on the previously filed answer. This conclusion is supported by the fact that it joined in the previously filed jury demand, The court perceives no prejudice to this defendant by striking the jury demand as untimely. The jury demand was obviously untimely and any reliance upon it was misplaced. Cf., 5 Moore’s Federal Practice 1138.45 at 343-44 (2d Ed.1964): “If a timely and proper demand for jury is made all other parties in the action who are affected by the demand may rely thereon and need not make a jury demand for issues embraced therein.” (Emphasis added.)

Lastly, this court has held that there is no right to a jury for actions brought by the Secretary for injunctive relief under 29 U.S.C. § 217, Donovan v. Simmons, No. 83-113-Civ-3 (April 5, 1984) (Dupree, J.), or for actions for liquidated damages under 29 U.S.C. § 216(c). Donovan v. River City Construction Company, No. 84-6-Civ-4 (E.D.N.C., May 1, 1984) (Fox, J.).

Accordingly, the Secretary’s motion to strike defendants’ jury demand is allowed.

SO ORDERED.

      . Curiously, the demand is made also on behalf of Travelers Trash Company, Inc., who was not made a defendant until the filing of an amended complaint on March 8, 1984.