author: HAIGHT, District Judge:

text:
    Ken WEDRA, Plaintiff, v. Dale THOMAS, Warden, Metropolitan Correctional Center, Defendant.
    No. 79 Civ. 6311-CSH.
    United States District Court, S.D. New York.
    Oct. 24, 1985.

      Richard Ware Levitt, New York City, for plaintiff.
    Rudolph W. Giuliani, U.S. Atty., New York City, for defendant; Carolyn L. Simpson, Asst. U.S. Atty., of counsel.

       The original caption named "Kenneth L. Payton and All Federal Protection Prisoners" as plaintiffs. Payton, as well as other original plaintiffs, left the unit and were replaced by, inter alia, Kenneth Wedra. At the time the case was settled, Wedra was the sole remaining plaintiff. The action was never certified as a class action.

   MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

Richard Ware Levitt, Esq., attorney for plaintiffs, moves this Court for an award of attorneys’ fees under the Equal Access to Justice Act (the “Act”), 28 U.S.C. § 2412 et seq., on the ground that his client was a prevailing party in litigation against the United States. Levitt represented pro bono a group of inmates housed in “Unit 3,” the federal witness security unit of the federal Metropolitan Correctional Center (“MCC”) in New York, who challenged certain MCC legal and social visitation policies regarding that unit. He requests payment for 29.4 hours of work on this matter at a rate of $100 per hour for a total of $2,940.00. No request for costs is made.

Defendant does not contest plaintiff’s right to recover attorneys’ fees as a prevailing party in this action, but defendant does challenge both counsel’s hourly rate and his entitlement to be paid for all time expended in connection with this action. Defendant asserts that Levitt should be paid no more than $75 per hour, the maximum rate permitted under the Act “unless the Court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). Defendant claims that Levitt has failed to justify a higher fee. Defendant further asserts that plaintiff prevailed on only three of his five claims and that therefore Levitt should be paid only for 60% of the total hours he spent on this litigation.

A brief history of the litigation is required in order to evaluate the parties’ positions.

The original plaintiffs in this action filed a complaint pro se on November 23, 1979, seeking a declaratory judgment, money damages and injunctive relief:

(1) permitting inmates in Unit 3 to confer privately with their attorneys without audial monitoring by MCC staff;

(2) permitting inmates’ attorneys to enter the unit without being photographed;

(3) permitting visits to inmates by attorneys other than their counsel of record;

(4) permitting the family and friends of inmates to visit the unit without being photographed; and

(5) permitting inmates to have more than six friends or family members on their list of approved visitors.

After various proceedings, including the filing by defendant of a motion for summary judgment seeking dismissal of all of plaintiffs’ claims, Mr. Levitt undertook to represent plaintiffs, at my request, in April 1982.

Shortly thereafter, he wrote to counsel for defendant in an effort “to identify and summarize our chief areas of concern____” Levitt initially noted that “attorneys who are not of record may now utilize attorney-only visiting hours” so that the third claim in the complaint was no longer a live issue. He then summarized the plaintiffs’ position on their first and fourth claims, expanding their first claim to encompass a request for added privacy in and no audial monitoring of social, as well as legal, visits. No mention was made of plaintiffs’ second or fifth claims.

After extensive settlement negotiations, the parties entered into a Stipulation and Order of Settlement and Dismissal dated May 7, 1985. That Stipulation stated in pertinent part:

1. The parties agree to settle this action on the terms indicated:
a. Respondent agrees to complete and open within 30 days of the date of this Stipulation and Order an attorney-client conference room in Unit 3 of the Metropolitan Correctional Center—New York (“Unit 3”). The room shall be separate and apart from the social visiting room already operational within Unit 3 and will be available for use by attorneys and Unit 3 residents during normal attorney-client visiting hours.
b. Respondent further agrees that Unit 3 residents may meet with bona fide attorneys additional to their attorneys of records, so long as the attorney has been given clearance by the M.C.C.
c. Respondent reserves the right to photograph attorneys seeking to interview Unit 3 residents, but agrees that attorneys with proper identification will not be denied access to Unit 3 residents on the ground that photo-identification has not been completed.
d. There is no audial monitoring of conversations between attorneys and clients.
e. Respondent states that the current policy of the Metropolitan Correctional Center is to permit Unit 3 residents to include 13 persons on their visiting lists.
f. Respondent states it is the current policy of the MCC to keep all photographs of social visitors to Unit 3 secure and to permit access to said pictures only to authorized personnel.

This agreement grants plaintiff the full relief he sought in his first, third and fifth claims; grants him some concessions on his second claim and grants him no relief on his fourth claim other than an assurance that it is the MCC’s policy to safeguard photographs of inmates’ social visitors and to permit access to them only to authorized personnel.

A. Apportionment

The United States makes no claim that it was not a party to the action, on the theory that Warden Thomas of the MCC was sued only in his individual capacity. Cf. Saxner v. Benson, 727 F.2d 669 (7th Cir.1984). Defendant does argue, however, that plaintiff has prevailed on only three of his five claims and consequently, that plaintiff may recover attorneys’ fees only for the three successful claims. Defendant suggests that a strict mathematical apportionment is appropriate, permitting plaintiff to recover 60% of Levitt’s total fees. This approach was expressly rejected by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Although the Court in Hensley held that as a general principle, a prevailing plaintiff may not recover attorneys’ fees for legal services on unsuccessful claims, it stated that it is up to the trial court, in light of various considerations delineated in the opinion, “to identify specific hours that should be eliminated, or ... simply reduce the award to account for the limited success.” 461 U.S. at 436-37, 103 S.Ct. at 1941. But the Court explicitly rejected the mechanical mathematical formula advocated by defendant herein:

“We agree with the District Court’s rejection of ‘a mathematical approach comparing the total number of issues in the case with those actually prevailed upon.’ ... Such a ratio provides little aid in determining what is a reasonable fee in light of all the relevant factors. Nor is it necessarily significant that a prevailing plaintiff did not receive all the relief requested. For example, a plaintiff who failed to recover damages but obtained injunctive relief, or vice versa, may recover a fee award based on all hours reasonably expended if the relief obtained justified that expenditure of attorney time.”

Id. at 435 n. 11, 103 S.Ct. at 1940 n. 11.

The focus of the Court, in exercising its discretion in this area, is on the results obtained by plaintiffs, and the degree to which the successful and unsuccessful claims are separable. Id. at 435, 103 S.Ct. at 1940. The Court explained:

“In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants—often an institution and its officers, as in this case—counsel’s work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been ‘expended in pursuit of the ultimate result achieved.’ Davis v. County of Los Angeles, 8 E.P.D., at 5049. The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.
“It may well be that cases involving such unrelated claims are unlikely to arise with great frequency. Many civil rights cases will present only a single claim. In other cases the plaintiff’s claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.
“Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. See Davis v. County of Los Angeles, supra, at 5049. Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.”

Id. at 434-35, 103 S.Ct. at 1939-40 (footnotes omitted).

I consider the claims on which plaintiff was largely unsuccessful to involve a common core of facts with those upon which plaintiff was successful. All of plaintiff’s claims were concerned with facilitating social and legal visitation in the unit with a minimum of intrusion on the part of the institution into the privacy of the inmates, their attorneys, and their social guests. In these circumstances, the suit “cannot be viewed as a series of discrete claims,” id., and it would be unreasonable to expect plaintiff’s counsel to identify those hours allocable to work on the unsuccessful claims. See, e.g., Citizens Council of Delaware County v. Brinegar, 741 F.2d 584, 596 (3d Cir.1984) (sufficient interrelationship among essential claims justifies full award of fees without apportionment based on success or failure of particular legal theories); American Academy of Pediatrics v. Heckler, 580 F.Supp. 436, 439 (D.D.C.1984) (reduction in fee not justified where plaintiffs prevailed on issue central to case and less successful issues were integrally related to the central issue).

But that is not the end of the Court’s inquiry. I must next consider the relationship between the results obtained by counsel and the amount of the fee award to determine if it is reasonable in the circumstances. In view of the fact that this constitutional challenge to institutional practices on behalf of a group of plaintiffs was settled on terms which granted plaintiffs most of the relief they sought in only 29.4 hours of plaintiff’s counsel’s time, I conclude that the amount of time claimed by Levitt is reasonable and even surprisingly low. I know not whether to ascribe that to plaintiff’s counsel’s powers of persuasion and efficient approach, or to the reasonableness and fair-mindedness of defense counsel. I suspect both should be given credit for achieving this satisfactory resolution of the lawsuit. In any event, it does not affect my finding that the amount of time expended by counsel was reasonable in relation to the result obtained. I. will therefore award plaintiff compensation for all of Levitt’s time expended in connection with this litigation—a total of 29.4 hours.

B. Hourly Rate

Levitt asserts that his attorneys’s fees should be awarded at a rate of $100 per hour, rather than the ordinary statutory maximum of $75 per hour, because the cost of living in New York generally is higher than elsewhere and the cost of living has increased since Congress set the $75 per hour standard in 1980, to take effect in 1981. See fn. 4, infra. In support of his claim, Levitt has submitted two pages from the 1985 Statistical Abstract of the United States which contains charts and graphs prepared by United States government agencies reflecting various price indices. The most relevant graph shows an annual increase of 3.5% in the consumer price index in 1983, and 4% in 1984. However the 1984 figure appears to be based in part on 1983 figures. This information is an insufficient basis upon which to make a finding regarding the appropriate cost of living increase for purchasing attorneys’ services from 1981 to 1985. To begin with, no data is submitted for the period June 1984 to present. In addition, the graph referred to encompasses all items in the consumer price index— goods as well as services.

Levitt has submitted no evidence upon which the Court could find that the cost of living is higher in New York than in other locales. Furthermore, even if he had, I am not certain that such a geographical exception is permitted under the statute. Surely Congress was aware in enacting the attorneys’ fees provisions of the wide disparity in fee rates between urban and rural areas; between the Northeast and the Midwest, etc.; yet Congress chose to set one uniform rate to be applied nationwide.

Given the lack of solid economic data submitted by counsel on the inflation issue, plaintiff’s request for an award based on a rate higher than the $75 statutory maximum is denied. To rule otherwise would involve the Court in impermissible speculation. See, Lonning v. Schweiker, 568 F.Supp. 1079, 1085 (E.D.Pa.1983) (request for cost of living increase denied for failure to brief entitlement to increase, how it should be calculated or from what point in 1982 it should accrue).

In consequence, the United States must pay attorney’s fees in the amount of $2,205.00.

I am not content to complete this discussion without observing that Mr. Levitt has rendered exemplary service to the inmates and to this Court. In a sensitive case, he achieved an excellent result with modest expenditure of time. If Mr. Levitt’s fee application fell to be decided under, say, 42 U.S.C. § 1988, I would be inclined to grant him a bonus over his regular rates. However, § 1988 does not contain a fee cap, as does § 2412;. and the latter statute “is ... like other statutes allowing recovery against the United States, a limited waiver of sovereign immunity and must be narrowly construed.” Unification Church v. Immigration and Naturalization Service, 574 F.Supp. 93, 96 (D.D.C.1983).

C. Form of Order and Judgment

The statute provides that attorney’s fees may be awarded “to the prevailing party,” § 2412(b); “party” is further defined in § 2142(d)(2)(B). A question arises—not addressed by counsel in the briefs—as to how payment should be directed in the case at bar. The population in Unit 3 of the MCC, a short-term facility, varies from time to time. None of the inmates, past or present, have actually paid fees to Mr. Levitt, who undertook their representation at the Court’s request. While applications for fee allowances under the statute are nominally made in the names of plaintiff inmates, Saxner v. Benson, supra, it would in the circumstances of this case be foolish, if not imprudent, to direct that counsel’s fees be paid directly to an inmate or inmates.

Accordingly I direct that the United States pay the sum of $2,205.00 to Richard Ware Levitt, Esq., as attorney for plaintiff, in full satisfaction of the United States’ obligation under 28 U.S.C. § 2412 to plaintiff for costs and attorney’s fees in this case.

If a judgment is necessary to effectuate expenditure of government funds, counsel may settle a judgment on notice for that amount, in favor of plaintiff and against defendant, but directing that payment in satisfaction thereof be made to Mr. Levitt.

It is SO ORDERED.

      . The Act passed Congress on October 21, 1980. 28 U.S.C. § 2412, after amendment, now reads in pertinent part:
      "(a) Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. A judgment for costs when taxed against the United States shall, in an amount established by statute, court rule, or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred by such party in the litigation.
      "(b) Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.”
      ******
      (d)(l)(2) "For the purposes of this subsection—
      “(A) 'fees and other expenses' includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party’s case, and reasonable attorney fees (The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that (i) no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the United States; and (ii) attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.);
      "(B) 'party’ means (i) an individual whose net worth did not exceed $1,000,000 at the time the civil action was filed, (ii) a sole owner of an unincorporated business, or a partnership, corporation, association, or organization whose net worth did not exceed $5,000,000 at the time the civil action was filed, except that an organization described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of the Code and a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141(a)), may be a party regardless of the net worth of such organization or cooperative association, or (iii) a sole owner of an unincorporated business, or a partnership, corporation, association, or organization, having not more than 500 employees at the time the civil action was filed; and
      "(C) 'United States’ includes any agency and any official of the United States acting in his or her official capacity.”
      The Act became effective on October 1, 1981.

      . See letter from Levitt to Assistant United States Attorney Nancy Friedman, dated May 13, 1982.

      . See Figure 16.2, n. 2, annexed to Levitt’s letter to the Court of September 9, 1985.

      . The fee provision of the Act became effective October 1, 1981. Therefore the cost of living adjustment contemplated by the Act must refer to increases taking effect after that date. See Action on Smoking and Health v. C.A.B., 724 F.2d 211 (D.C.Cir.1984), permitting an adjustment for the rise in the cost of living only since the effective date of the Act. The court stated: "The $75 maximum presumably incorporated increases in the cost of living to [October 1, 1981]. We must assume that Congress believed that $75 in October 1981 dollars, ... was an appropriate fee cap.” 724 F.2d at 218.

      . Although Figure No. 777, on the second page of Levitt’s exhibits is broken down into categoríes of consumer prices such as "services,” its data only covers the period 1980-1983.


source: Caselaw Access Project

author: JUNE L. GREEN, District Judge.

license: Public Domain

text:
    Harold L. BEYNUM, Plaintiff, v. James M. BOTELER, et al., Defendants.
    Civ.A. No. 82-1600.
    United States District Court, District of Columbia.
    Dec. 12, 1985.
    Ellen K. Reisman, Marian S. Block, Arnold & Porter, Washington, D.C., for plaintiff.
    Janet Golup, Asst. Corp. Counsel, Washington’ D‘C” for defendants-
   MEMORANDUM ORDER

JUNE L. GREEN, District Judge.

Plaintiff Harold L. Beynum brought this suit for damages against defendants James Boteler, Irving Cousins, Chief of Police Maurice Turner, and the District of Columbia, pursuant to the United States Constitution and 42 U.S.C. § 1983. Defendant Turner moves to dismiss the complaint under Rule 12 of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court denies defendant Turner’s motion to dismiss the complaint.

I. Background

The above-styled action arises out of the defendants’ use of force in arresting plaintiff in the early morning hours of June 10, 1981. Plaintiff went to the door of the apartment building where he was staying in response to his brother’s knocking at the door. Upon opening the door, plaintiff discovered that members of the Metropolitan Police Department (“MPD”) were waiting for him. Second Amended Complaint (“Complaint”) ¶ 9. Defendant policeman James Boteler shot plaintiff with a shotgun issued by the MPD. Subsequently, defendant policeman Irving Cousins shot plaintiff three times with a service revolver issued by MPD. Complaint ¶¶ 10, 11. As a result of these shootings, plaintiff suffered serious injuries. Complaint M13, 14. Allegedly, plaintiff was unarmed during this incident. Complaint ¶ 12.

Defendant Maurice Turner is sued in both his individual and representative capacity as Chief of MPD. He is alleged to be the policymaker responsible for promulgating all orders, rules, instructions, regulations, and policies governing the conduct of police officers. It is alleged that defendant Turner’s failure to promulgate policies governing the use of force consistent with the Constitution and laws of the District of Columbia violated plaintiff’s rights under the Fourth, Fifth, Sixth, and Eighth Amendments of the Constitution. Defendant Turner is also alleged to be responsible for supervising the training, instruction, discipline, control and conduct of defendants Cousins and Boteler. It is asserted that defendant Turner’s failure to supervise and train adequately Cousins and Boteler in the use of force constitutes violations of plaintiff’s constitutional rights and constitutes tortious conduct under District of Columbia law.

II. Conclusions of Law

A. The Legal Standard

The standard governing Rule 12 motions to dismiss is well established. The only issue relevant to a Rule 12 motion is whether the allegations of the complaint are sufficient to state a claim under any set of facts. The test most often applied to determine the sufficiency of the complaint was set out in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957), where it was stated that:

in appraising the sufficiency of the complaint we follow ... the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Accord Schuler v. United States, 617 F.2d 605 (D.C.Cir.1979).

Thus, in order to prevail on his motion to dismiss, defendant Turner must show that, as a matter of law, there are no facts that, if proven in support of plaintiff’s theory of liability, would entitle plaintiff to relief. Defendant Turner has not made such a showing.

B. Liability Under 42 U.S. C. § 1983

Plaintiff has alleged that defendant Turner’s acts or omissions in promulgating MPD policies and/or in supervising the training of defendants Boteler and Cousins resulted in a deprivation of plaintiff’s constitutional rights. Complaint Ml 15, 18, 23, 28, 33, 38, 43. The law is clear that such allegations against a supervisory official in a section 1983 action are sufficient to withstand a motion to dismiss. Carter v. Carlson, 447 F.2d 358, 365 (D.C.Cir.1971), rev’d on other grounds sub nom District of Columbia v. Garter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973).

Under Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976), a supervisor can be held liable where there is “an affirmative link” between the supervisor’s own actions and the misconduct of his subordinates. See also Fludd v. United States Secret Service, 102 F.R.D. 803, 806 (D.D.C.1984) (the “affirmative link” may exist in the manner in which the supervisory official performs or fails to perform his supervisory function). In addition, under Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), a showing of simple negligence, as opposed to gross negligence or intentional misconduct, is enough to state a section 1983 claim against a supervisory official. Plaintiff alleges in his second amended complaint that defendant Turner failed to supervise adequately the training of defendants Boteler and Cousins and that he failed to promulgate proper policies regarding the use of firearms by MPD officers. Complaint ¶¶ 15, 18, 23, 28, 33, 38, 43.

C. Immun¶ity From Suit

Defendant Turner argues that he is immune from suit for two reasons: (1) that he is immune for his “discretionary acts as a high level supervisor,” and (2) that he is entitled to qualified immunity under the standard set forth in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). As a preliminary point, plaintiff has noted correctly that defendant Turner is being sued in both his individual and representative capacities. Plaintiff's Opposition to Defendant Turner’s Motion to Dismiss at 16 n. 6. There is no immunity defense for officials sued in their representative capacity. Brandon v. Holt,—U.S.-, 105 S.Ct. 873, 878, 83 L.Ed.2d 878 (1985); Owen v. City of Independence, 445 U.S. 622, 638 n. 18, 100 S.Ct. 1398, 1409 n. 18, 63 L.Ed.2d 673 (1980).

The Court of Appeals for the District of Columbia stated recently, “Federal law enforcement officers, like their state counterparts, may claim only qualified immunity from suits alleging constitutional violations.” McKinney v. Whitfield, 736 F.2d 766, 769 n. 15 (D.C.Cir.1984). Generally, immunity is granted to a public official, if at all, only for discretionary acts within the scope of his authority, not for ministerial acts. Shifrin v. Wilson, 412 F.Supp. 1282, 1297-98 (D.D.C.1976). The line between discretionary and ministerial acts of public officials may be a thin one, indeed. It would be improper for the Court to rule on such a factual matter in deciding a motion to dismiss the complaint. See Sckeuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) (“The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.”).

The test for when a government official has qualified immunity is set forth in Harlow v. Fitzgerald, 457 U.S. at 818,102 S.Ct. at 2738:

[G]overnment officials performing discretionary functions generally are shielded from liability in civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Plaintiff alleges in his second amended complaint that defendant Turner violated clearly established legal principles in promulgating rules on the use of force and in failing to supervise properly defendants Cousins and Boteler. See, e.g., Complaint ¶¶ 15, 18, 23. The Court finds that defendant Turner is not entitled to qualified immunity on the face of the complaint. See Hardeman v. Clark, 593 F.Supp. 1285, 1288 (D.D.C.1984) (a policy depriving one of constitutional rights is actionable notwithstanding Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct.2727).

Accordingly, upon consideration of defendant Turner’s motion to dismiss, the opposition thereto, defendant Turner’s reply, and the entire record herein, it is by the Court this 12th day of December 1985,

ORDERED that defendant Turner’s motion to dismiss is denied.


author: LEIGHTON, District Judge.

text:
    PONTARELLI LIMOUSINE, INC., et al., etc., Plaintiffs, v. The CITY OF CHICAGO, a municipal corporation, et al., Defendants.
    No. 83 C 6716.
    United States District Court, N.D. Illinois, E.D.
    Oct. 29, 1985.

      Charles Pressman, Morris G. Dyner, Dan Brusslan, Fischel & Kahn, Chicago, 111., for plaintiffs.
    Jeremiah Marsh, William J. McKenna, Christopher W. Zibart, Hopkins & Sutter, Chicago, 111., for defendants; Bob Fioretti, Chicago, of counsel.
   Memorandum

LEIGHTON, District Judge.

This is a motion by defendants, City of Chicago (“City”), and Thomas Kapsalis, Commissioner of Aviation of the City of Chicago, to strike plaintiffs’ claim for antitrust damages. The complaint alleges that City and certain unlicensed suburban liveries (“Suburban”) conspired to foreclose plaintiffs from the market of walk-up passengers at O’Hare Airport by establishing rent-free booths for the exclusive use of Suburban to solicit customers. In Count III, plaintiffs allege violations of the Sherman Antitrust Act, 15 U.S.C. §§ 1 and 2, the only claims relevant to this motion.

Subsequent to the filing of the complaint in this case, Congress enacted the Local Government Antitrust Act of 1984, 15 U.S.C. §§ 34-36 (“the Act”) which provides that no damages may be recovered from any local government under § 4 of the Clayton Act, 15 U.S.C. § 15, the provision on which plaintiffs rest their claim for damages. However, the Act does not preclude a damage claim against a city in cases filed prior to its effective date, September 24, 1984, “unless the defendant establishes, and the court determines, in light of all the circumstances, including the stage of litigation and the availability of alternative relief under the Clayton Act, that it would be inequitable not to apply this subsection to a pending case.” 15 U.S.C. § 35(b).

The issue before the court is whether it would be inequitable not to apply the Act to the claim for damages alleged in Count III. In urging application of the Act, City makes four arguments: First, alternative relief is available to plaintiffs under the Clayton Act in that they will still have full recourse against private defendants. Second, City did not reap any benefit from the alleged anticompetitive conduct because it provided the booths rent free; thus, profits allegedly lost by plaintiffs accrued to Suburban and not to City. Third, plaintiffs’ claim for injunctive relief will remain undiminished. Finally, the case is in the early stages of litigation; the class has not yet been certified and discovery to date has been minimal.

Plaintiffs respond with the argument that the only alternative remedy to be considered under the Act is injunctive relief; the possibility of obtaining damages from private defendants should not exculpate City. They claim that even injunctive relief in this case will be an incomplete remedy because many plaintiffs have already been forced out of business. They argue further that the fact City did not charge a rental fee for the booths is irrelevant because City profitted from its conduct in other ways. Plaintiffs insist that the litigation is at an advanced stage; the court has ruled on motions to dismiss; and the class certification issue is nearly fully briefed. This suit was filed thirteen months prior to the effective date of the Act; plaintiffs claim they have relied on the availability of an adequate remedy at law. Finally, plaintiffs argue that the other circumstances to be weighed do not favor defendants’ position. They point out that no unusual financial harm will result because City has a substantial budget; and further, it acted in bad faith.

Determining whether the Act should be applied to a pending case must be made on a case-to-case basis, with the burden of proof on the local government defendant to show that it would be inequitable not to apply the statute. See Woolen v. Surtran Taxicabs Inc., 615 F.Supp. 344, 351 (N.D. Tex.1985). The statute lists two factors to be considered in this analysis: the stage of the litigation and the availability of alternative relief under the Clayton Act. 15 U.S.C. § 35(b). Some courts have suggested consideration of three additional factors noted in the legislative debates: (1) the financial harm that a treble damage award can inflict on a municipality and its taxpayers; (2) whether the municipal action was predicated on or in furtherance of state or federal laws; and (3) whether the municipality acted in good faith in the discharge of its normal legislative, regulatory, executive, administrative, or judicial authority. See Woolen, 615 F.Supp. at 351; Miami Int’l Realty Co. v. Town of Mount Crested Butte, 607 F.Supp. 448, 454 (D.Colo.1985).

As to the first statutory factor, the stage of the litigation, a crucial factor militating in favor of applying the Act to pending cases is the failure to complete pretrial discovery prior to the statute’s effective date. See e.g., Woolen, 615 F.Supp. at 352, Miami Int’l Realty, 607 F.Supp. at 452 citing 130 Cong.Rec. H12187 (daily ed. Oct. 11, 1984). Thus, where discovery is continuing, courts have almost universally applied the Act to cases pending prior to its effective date. See Woolen, 615 F.Supp. at 352; S. Kane & Son Inc. v. W.S. Grace & Son, 623 F.Supp. 162, 163 (E.D.Pa.1985); Miami Int’l Realty, 607 F.Supp. at 453; Jefferson Disposal Co., Inc. v. Parish of Jefferson, La., 603 F.Supp. 1125, 1132-33 (E.D.La.1985); Trustees of A.J. Bremen Realty Trust v. City of Boston, 1985-1 Trade Cas. (CCH) ¶ 66,520 (D.Mass.1985); TCI Cablevision Inc. v. City of Jefferson, Mo., 604 F.Supp. 845, 1985-1 Trade Cas. (CCH) ¶ 66,335 (W.D.Mo.1984). Cf. Huron Valley Hosp. Inc. v. City of Pontiac, 612 F.Supp. 654, 664-65 (E.D.Mich.1985) (court refused to apply Act to 1978 case where district court had previously entered judgment, although judgment was later vacated and discovery was still ongoing).

Here, the case was filed thirteen months prior to the effective date of the Act. Although the docket discloses no discovery activity in the past year, a discovery cutoff date has not been set. This court has ruled on defendants’ motions to dismiss but has not ruled on the class certification issue; indeed, this issue has not been fully briefed. Considering all of these factors, the court concludes that this case has not yet progressed to such an advanced stage so as to preclude application of the Act.

As to the second statutory factor, the availability of alternative relief, some courts have limited this consideration to whether injunctive relief will halt any continuing injury, and have refused to weigh the possibility of damage relief from other private defendants. See Miami Int’l Realty, 607 F.Supp. at 454, Jefferson Disposal, 603 F.Supp. at 1133 n. 19. Other courts have looked to whether plaintiff can recover damages from other private defendants, or obtain injunctive relief. See Woolen, 615 F.Supp. at 352; S. Kane & Son, 623 F.Supp. at 163; TCI Cablevision, 604 F.Supp. 845, 1985-1 Trade Cas., ¶ 66,-335. Both criteria are met here. There are several private defendants which can be held liable for money damages. Further, plaintiffs can halt any continuing injury by seeking appropriate injunctive relief. The availability of alternative relief therefore weighs in favor of the applying of the Act to this case.

As to the three non-statutory factors, the court finds them of little use to its analysis at this stage of the litigation. Unless the municipality is clearly engaging in actions directed by or predicated on state or federal law, a determination whether City acted in good faith cannot be made in review of the pleadings on a motion to strike.

As to whether the resulting financial harm to City will be considerable, this question will nearly always be answered in the affirmative. The claimed treble damages in this case amount to $30 million in potential liability. This court doubts that the resulting financial harm to a municipality from treble damage liability would ever be insignificant, even though it may not necessarily result in municipal bankruptcy. Cf. Woolen, 615 F.Supp. at 353. The court therefore confines its analysis to the factors enumerated in the statute.

In summary, in considering the statutory factors of the stage of the litigation and the availability of alternative relief under the Clayton Act, the court concludes that it would be inequitable not to apply the Act in this case. Accordingly, defendants’ motion to strike plaintiffs’ claim for antitrust damages against City is granted.

So ordered.

      . Defendants include both licensed and unlicensed livery services and two trade associations operated for their benefit. These defendants are referred to collectively in the complaint as "Suburban Liveries" as they operate out of Chicago suburbs. Plaintiffs are licensed liveries operating out of Chicago.

      . Count I is brought under 42 U.S.C. § 1983 and alleges that City permitted Suburban Liveries to solicit passengers at O’Hare and denied Chicago Liveries this right. Count II alleges Suburban Liveries, through their trade associations, conspired with City to confer a monopoly on Suburban Liveries.


author: YOUNG, District Judge.

text:
    Mary Lou HOLLAND, Plaintiff, v. Henry BREEN, et al., Defendants.
    Civ. A. No. 85-1050-Y.
    United States District Court, D. Massachusetts.
    Oct. 30, 1985.

      John M. Connolly, Falmouth, Mass., for plaintiff.
    Richard T. Corbett, Law Office of Philip J. McCarthy, Boston, Mass., for defendants.
   MEMORANDUM AND ORDER

YOUNG, District Judge.

This action arises from an August 13, 1983 incident in which Daniel F. Carbone committed suicide by hanging himself in a cell at the Falmouth, Massachusetts police station. The plaintiff, Mary Lou Holland, is Carbone’s mother and the Administratrix of the decedent’s estate. Holland alleges that the defendants acted negligently, willfully, maliciously, and with reckless indifference and disregard of Carbone’s life and safety, and thereby caused Carbone’s death. Holland brings a claim under 42 U.S.C. § 1983, together with pendent state claims. The defendants have now moved to dismiss the action for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted.

I. Factual Background

Holland alleges the following facts, which the court must take as true for purposes of this motion to dismiss: On August 13, 1983, Carbone was taken into custody by defendant Kris Bohnenberger, a Falmouth police officer, because Carbone was “not capable of caring for himself and was in such an intoxicated state so as to be dangerous to his own well being.” While in custody, Carbone was beaten about the face, head, and shoulders by officers of the Falmouth Police Department, as a result of which Carbone suffered physical and mental pain, humiliation, and depression. Despite a clear and obvious need for medical attention, Carbone was not taken to a hospital or medical center for treatment. Instead, he was placed in an unsupervised cell at the Falmouth Police Department, a cell which had no monitoring device and was not visible to the jailkeeper. At some point during his incarceration in that unsupervised cell, Carbone committed suicide by hanging himself.

On March 14, 1985, Holland brought this action against Officer Bohnenberger; the Falmouth Chief of Police Henry Breen; the Town of Falmouth Selectmen Leonard Cos-ta, William Jones, and Heather McMurtrie; and the Town of Falmouth itself. The motion to dismiss is filed on behalf of all defendants.

II. Section 1983 Claim Generally

In analyzing the plaintiffs § 1983 claim, we must first look to Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), in which the Supreme Court stated:

[I]n any § 1983 action the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.

Id. at 535, 101 S.Ct. at 1913. It is not contested that the defendants were acting under color of state law. With respect to the second prong of Parratt, Holland alleges that the defendants deprived Carbone of his life in violation of the Fourteenth Amendment to the Constitution of the United States.

The Fourteenth Amendment does not protect against all deprivations of life, liberty, or property by the State—it “protects only against deprivations ‘without due process of law.’ ” Id. at 537, 101 S.Ct. at 1914. In Parratt, a prison inmate sued for damages under § 1983, alleging that he was deprived of property without due process of law when prison officials negligently lost his hobby kit. The Court held that the deprivation did not violate due process because of the availability of a post-deprivation damages remedy under state law. A state tort remedy may provide sufficient “due process” where a deprivation does not result from some established state procedure and the State cannot provide a meaningful hearing before the deprivation takes place. The Court emphasized, however, that in order to satisfy due process requirements, the state remedy must provide “some meaningful opportunity subsequent to the initial taking for a determination of rights and liabilities.” Id. at 541, 101 S.Ct. at 1916.

On its facts, Parratt was limited to negligent deprivations of property. In Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Supreme Court extended the rationale of Parratt to intentional deprivations of property, holding that such deprivations do not violate the due process requirements of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available under state law. Id. at 3204.

The Supreme Court has not yet decided whether the Parratt and Hudson principles apply to negligent or intentional deprivations of life or liberty. In Parratt, Justices Blackmun and White joined the majority opinion only on the understanding that the decision did not apply to deprivations of life or liberty. 451 U.S. at 545, 101 S.Ct. at 1917 (Blackmun, J., concurring). On the other hand, the majority opinion was joined by five members of the Court in addition to Justices Blackmun and White, and it did not limit the decision’s reach solely to property deprivations.

The lower federal courts are divided on this issue. Several courts, relying heavily on Justice Blackmun’s concurring opinion, have held that Parratt applies only to deprivations of property. See, e.g., Wilson v. Beebe, 743 F.2d 342, 350 (6th Cir.1984); Brewer v. Blackwell, 692 F.2d 387, 394-95 (5th Cir.1982); Wakinekona v. Olim, 664 F.2d 708, 715 (9th Cir.1981), rev’d on other grounds, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). Other courts have applied Parratt to deprivations of liberty interests. See, e.g., Thibodeaux v. Borde Ion, 740 F.2d 329, 334-38 (5th Cir.1984); Gilmere v. City of Atlanta, 737 F.2d 894, 905-10 (11th Cir.1984); Daniels v. Williams, 720 F.2d 792, 796 (4th Cir.1983), cert. granted,—U.S.-, 105 S.Ct. 1168, 84 L.Ed.2d 320 (1985); Haygood v. Younger, 718 F.2d 1472, 1478-81 (9th Cir.1983); see also King v. Pace, 575 F.Supp. 1385, 1388 n. 1 (D.Mass.1983). In addition, at least two courts have held that Parratt applies to deprivations of life. See State Bank of St. Charles v. Camic, 712 F.2d 1140, 1147 (7th Cir.) (jail suicide), cert. denied, 464 U.S. 993, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983); Meshkov v. Abington Township, 517 F.Supp. 1280, 1286 (E.D.Pa.1981) (jail suicide).

Because the Court rules that Holland’s complaint may encompass a substantive due process claim, it is unnecessary to decide whether Parratt applies to a deprivation of life. A Fourteenth Amendment due process claim may allege a denial of either procedural or substantive due process, or both. Ramos v. Gallo, 596 F.Supp. 833, 837 (D.Mass.1984). A procedural due process claim focuses on the procedures used by the state in effecting the alleged deprivation. On the other hand, a substantive due process claim “alleges not that the state’s procedures are somehow deficient, but that the state’s conduct is inherently impermissible, regardless of any protective or remedial procedures it provides.” Id.; see Schiller v. Strangis, 540 F.Supp. 605, 614 (D.Mass.1982). When a state actor violates substantive rights, the constitutional violation is complete at the time of the deprivation, irrespective of the post-deprivation procedures that might be available for redressing the wrong. For this reason, courts have uniformly held that Parratt does not bar substantive § 1983 claims. See Ramos v. Gallo, 596 F.Supp. at 838; Begg v. Moffitt, 555 F.Supp. 1344, 1362 & n. 58 (N.D.Ill.1983) (collecting cases); see also Hudson v. Palmer, 104 S.Ct. at 3208 n. 4 (1984) (Stevens, J., concurring).

Substantive due process is based on “the right to be free of state intrusions into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court.” Ramos v. Gallo, 596 F.Supp. at 837 (quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980)); see Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). In most cases involving substantive due process claims against law enforcement officials, the offending conduct was intentional. A typical example is the use of excessive force or brutality during an arrest or incarceration. See, e.g., Freeman v. Franzen, 695 F.2d 485 (7th Cir.1982), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1400 (1983). However, this does not foreclose the possibility that a negligent act may also provide the basis for § 1983 liability under a substantive due process theory. See Wilson v. Beebe, 743 F.2d 342, 349-50 (6th Cir.1984) (holding a cocked pistol on a suspect evinces reckless disregard for the rights of the suspect, which would allow a jury to find a constitutional violation and § 1983 liability). In appropriate circumstances, negligent conduct by law enforcement officials which causes or contributes to the death or bodily injury of a person in custody may violate the victim’s substantive due process rights. “The existence of this right to ultimate bodily security—the most fundamental aspect of personal privacy—is unmistakably established in our constitutional decisions as an attribute of the ordered liberty that is the concern of substantive due process.” Hall v. Tawney, 621 F.2d at 613.

In this case, Holland has alleged that Falmouth police officers beat Carbone and that all defendants acted willfully, maliciously, and with reckless indifference and disregard of Carbone’s life and safety, thereby causing his death. Holland has also alleged that there have been “prior incidents within the Department” which should have given notice to the defendants of the need to supervise Carbone more closely. Although the defendants dispute these allegations, the Court must accept the allegations as true for purposes of this motion.

At this stage of the case, the Court cannot conclude that Holland will fall short of offering proof sufficient to show that the defendants’ conduct was so egregious that it “shocks the conscience” for purposes of asserting a substantive due process claim. There has been no discovery in the case and a number of material facts are unknown, such as the precise nature of Car-bone’s behavior at the time he was taken into custody, the actions of the Falmouth police officers in confining Carbone, the jailing and watch procedures of the Falmouth Police Department, the policies relating to training and supervision of police department staff, and the history of prior incidents at the jail. Although the Court expresses no opinion on these issues or their relative weight, they are important in assessing the defendants’ conduct. For these reasons, the defendants’ motion to dismiss must be denied.

III. Claims Against Specific Defendants

The defendants argue that even if Parratt does not dispose of the plaintiff’s § 1983 claims in their entirety, the individual § 1983 claims against each of the defendants should be dismissed on separate grounds.

A. Officer Bohnenberger.

The defendants argue that Officer Bohnenberger is immune from liability under § 1983 in the absence of allegations that he did not act in good faith. The defendants’ reliance on Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) is misplaced. Although the Supreme Court in Pierson held that a good faith defense may be raised by a police officer in a § 1983 action, the Court emphasized that a defendant cannot obtain dismissal of an action simply by raising that defense. Id. at 557, 87 S.Ct. at 1219. The burden of pleading a qualified immunity defense rests with the defendant, and the plaintiff is under no obligation to allege in his complaint that the defendant acted in bad faith. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Of course, even if there was such an obligation, Holland has included in her complaint allegations that Officer Bohnenberger acted willfully, maliciously, and with reckless indifference and disregard to the life of Car-bone. The Court rules that Holland has stated a cognizable § 1983 claim against defendant Bohnenberger.

B. Breen, Costa, Jones, and McMurtrie.

The complaint alleges that defendant Breen was acting Chief of Police in charge of the Falmouth Police Department when Carbone was taken into custody, and that defendants Costa, Jones, and McMurtrie were duly elected Selectmen for the Town of Falmouth with direct responsibility for establishing and enforcing policies, practices, rules, and regulations of the Falmouth Police Department. The complaint further alleges that the defendants failed to make available adequate, monitored facilities for incarcerated inmates. Although Holland has made little attempt to spell out the precise actions or omissions of these four defendants as they relate to Carbone’s death, the Court rules that the complaint is adequate to withstand a motion to dismiss. See Limerick v. Greenwald, 666 F.2d 733, 735 (1st Cir.1981). A fair reading of the complaint indicates that Holland is alleging a failure by these four defendants to promulgate or enforce policies which would have adequately protected Carbone, and perhaps a failure to supervise those persons who actually incarcerated Carbone.

The defendants argue that Breen, Costa, Jones, and McMurtrie acted solely in a supervisory capacity and that “official inaction” is insufficient to impose liability under § 1983. Although “mere failure to supervise is not a basis for liability under § 1983,” liability will result “if delinquent supervision is so severe as to amount to gross negligence or deliberate indifference to constitutional violations.” Fernandez v. Chardon, 681 F.2d 42, 56 (1st Cir.1982), aff'd, 462 U.S. 650, 103 S.Ct. 2611, 77 L.Ed.2d 74 (1983); see Estate of Gilmore v. Buckley, 608 F.Supp. 554, 558 (D.Mass. 1985) (supervisory officials may be held responsible for constitutional deprivations by subordinates to which they are “deliberately indifferent”). On the basis of the allegations in the complaint, the Court cannot conclude that “it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Limerick v. Greenwald, 666 F.2d at 735 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).

C. The Town of Falmouth

In Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities may be sued directly under § 1983 for constitutional deprivations inflicted pursuant to a governmental custom, policy, ordinance, regulation, or decision. Id. at 690-91, 98 S.Ct. at 2035-36. A city may not be held liable for the actions of its employees or agents under a theory of respondeat superior, but instead is liable only where there is a causal link between an official policy or custom and the plaintiffs injury. Id. at 694, 98 S.Ct. at 2037. Thus, to hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right. Batista v. Rodriguez, 702 F.2d 393, 397 (2nd Cir.1983).

The complaint alleges that certain defendants were responsible for establishing and enforcing policies of the Falmouth Police Department, that the defendants failed to provide adequate, monitored facilities to protect inmates, and that the defendants’ acts and omissions caused Car-bone’s death. Holland incorporates other factual allegations in her brief, but those allegations are not considered since the Court’s focus is limited to the allegations contained in the complaint itself. Glaros v. Perse, 628 F.2d 679, 681 (1st Cir.1980). Although the complaint would be stronger if Holland had made more specific allegations regarding municipal policies and the individual defendants’ roles in carrying out those policies, the Court rules that Holland has satisfied her minimal pleading requirements and has stated a cognizable claim against the Town of Falmouth.

For the reasons set forth above, the defendants’ motion to dismiss is DENIED.

SO ORDERED.

      . Naturally, this Court expresses no opinion concerning the actual veracity of any of the alleged facts.

      . The defendants assert that the incident occurred on August 14, 1983.

      . Several courts have relied on Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) for the proposition that Parratt extends to liberty interests. See, e.g., Juncker v. Tinney, 549 F.Supp. 574, 576-77 (D.Md.1982); Temple v. Marlborough District Court, 395 Mass. 117, 124, 479 N.E.2d 137 (1985). In Ingraham, two junior high school students claimed that corporal punishment in public school violated their constitutional rights. The Court held that the students’ Fourteenth Amendment rights were implicated because there was a liberty interest at stake, but nevertheless concluded that the students failed to state a claim under § 1983 because "the traditional common-law remedies are fully adequate to afford due process.” 430 U.S. at 672, 97 S.Ct. at 1413.


author: EDWARD C. REED, Jr., District Judge.

text:
    Richard BARGEN, et al., Plaintiffs, v. The DEPARTMENT OF DEFENSE, et al., Defendants.
    No. CV-R-84-258-ECR.
    United States District Court, D. Nevada.
    Nov. 14, 1985.

      Richard Bargen, in pro. per.
    William Maddox, U.S. Atty. by Shirley Smith, Asst. U.S. Atty., Reno, Nev., and Gary B. Randall, Dept, of Justice, Washington, D.C., for defendants.
   MEMORANDUM DECISION AND ORDER

EDWARD C. REED, Jr., District Judge.

Defendants have objected to the portion of the Report and Recommendation of U.S. Magistrate Phyllis Halsey Atkins that recommends denial of their motion for summary judgment on Plaintiffs’ claim for relief based on the alleged failure of Defendants to prepare an environmental impact statement (EIS). It is Plaintiffs’ position that an EIS is required prior to the enactment of legislation by Congress that would withdraw over twenty-one thousand acres of public land from the public domain. The bulk of the land surrounds, and would be used in connection with, a training and weapons testing area situate northeast of Fallon, Nevada, and known as the Bravo-20 Range.

The basis for the motion for summary judgment as to this issue is the fact that defendant Department of the Navy did prepare a “Final Environmental Assessment for Withdrawal of the Bravo-20 Bombing Range.” After reviewing said assessment, the Department published a “finding of no significant impact” in the Federal Register. Only then did the Department of Interior submit to Congress the Navy’s request for legislation withdrawing the public lands. It is the Defendants’ position that the preparation of the Environmental Assessment and the notice and hearing procedure followed prior to the request to Congress satisfied their responsibilities under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.

Plaintiffs argue that NEPA requirements have not been satisfied because the proposed withdrawal is only a part of a 10-year expansion plan that contemplates an expansion of, and new uses for, the Bombing Range. This contradicts the publication in the Federal Register (5/22/80 at page 34339), which states that no new uses are authorized by the proposed legislation and that any alterations from the land’s present state would be addressed in subsequent, site-specific environmental documentation.

Magistrate Atkins notes that the Environmental Assessment is not as detailed as, nor the same as, an EIS. She mentions that the aircraft, ordinance and techniques employed at the Bombing Range have changed drastically since the early 1940s, when it was first put into use. There is no indication that any environmental documentation other than the assessment before the Court has ever been made. She notes that the use contemplated for the lands would make it unusable for any other purpose for an indefinite period of time. Unexploded bombs and projectiles tend to bury themselves below the surface or be covered by shifting sand, so that they are not readily observable. It is not economically feasible to attempt to clear such an area. The Magistrate also mentions that existing and potential public uses, such as oil and gas leasing, geothermal development, and wilderness preservation probably would be impossible or impracticable after withdrawal. Defendants have acknowledged, in their Answer to the Complaint, that the proposed withdrawal is “consistent” with a 10-year master plan for the Fallon Naval Air Station. That plan suggests that an increased number of aircraft would be flying over inhabited areas and that a contemplated weapons impact scoring system would call for the installation of a power line, an elevated access road, a tower with microwave transmitter, an elevated helicopter pad, and thirty-two miles of security fence.

Magistrate Atkins concludes that Defendants have not shown that the legislation will have no significant impact on the human environment, nor have they shown that the project is merely a continuation of the status quo. She finds that the Navy’s finding of no significant impact was unreasonable under the circumstances.

Defendants’ objections to the Magistrate’s Report and Recommendation are premised on their contention that the adequacy of the Environmental Assessment was not properly before the Magistrate. They interpret the Complaint as alleging that no environmental study has been made, rather than that an inadequate study was made. Defendants contend that their responses and arguments have been focused on proving that the Environmental Assessment was made, so that they have not addressed properly the issue of its adequacy.

Plaintiffs are appearing pro se. Their pertinent allegations appear within the First Cause of Action section of the Complaint. Part III, Paragraph 18 asserts that Plaintiffs believe the Navy published in the Federal Register, in May 1982, a Notice of Intent to prepare an EIS for, among other things, a proposal to withdraw public lands surrounding and including bombing targets near Fallon. Paragraph 24 alleges that NEPA requires an environmental review of all major federal agency actions that significantly impact the environment. Paragraph 33 states that the published Notice of Intent did not include land withdrawals for the Bravo-20 Bombing Range. (The Answer of Defendants admits the allegation of Paragraph 33). In Paragraph 34, Plaintiffs contend that, as of the date of the Complaint, there has not been any announced review of the environmental effects of the proposed land withdrawals. Paragraph 35 contains allegations that the land withdrawal at Bravo-20 has not been proposed for environmental review and “is proceeding without a legal and proper environmental impact study.” (Emphasis in original.) Defendants denied both Paragraphs 34 and 35. Part IV, Paragraph 2 asserts that the Navy stands in violation of NEPA “due to its failure ... to conduct an environmental review as is mandatory prior to commencing a major federal agency action, an action that will result in a significant adverse impact on the quality of human life in central Nevada.”

Part V contains the prayers for relief of the First Cause of Action. A writ of mandamus is asked for requiring, among other things, “the Secretary of the Navy to conduct a proper, scientific environmental impact study, as mandated by NEPA to address the environmental impacts of the land withdrawal____”

It is not the duty of a trial court to create a claim which the plaintiffs have not spelled out in their pleading. Doleman v. Meiji Mutual Life Ins. Co., 727 F.2d 1480, 1484 (9th Cir.1984). On the other hand, a pro se complaint is held to less stringent standards than a pleading drafted by a lawyer. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972).

A complaint is required merely to provide the opposing parties with notice as to what is at issue in the lawsuit; a specific legal theory need not be pleaded. Electrical Const. & Main. v. Maeda Pacific Corp., 764 F.2d 619, 622 (9th Cir.1985). As stated in Dearman v. Woodson, 429 F.2d 1288 (10th Cir.1970), at 1289:

“The accepted philosophy of pleading under the Federal Rules is that they are little more than a general indication of the type of litigation involved. ‘A generalized summary of the case that affords fair notice is all that can be expected.’ 2 Moore F.P. 1613.”

The Electrical Const. & Maint. opinion, at 764 F.2d 623, quotes from Wright & Miller to the effect that a complaint should not be dismissed merely because the allegations don’t support the legal theory the plaintiffs intend to pursue; “... the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory.” Accord, Rohler v. TRW, Inc., 576 F.2d 1260, 1264 (7th Cir.1978). A court may deny a motion for summary judgment on the basis of a legal theory not embraced by the plaintiffs, just so the theory is supported by the facts alleged and the defendants are not prejudiced on the merits. Hanson v. Hoffmann, 628 F.2d 42, 53 n. 11 (D.C.Cir.1980). Prejudice to the defendants on the merits is unlikely where the new theory is raised in the plaintiff’s opposition to a motion for summary judgment. Foster Med. Corp. Emp. Pension Plan v. Healthco, 753 F.2d 194, 197 (1st Cir.1985).

The foregoing principles control the determination of Defendants’ argument that Plaintiffs’ Complaint doesn’t raise the issue of the adequacy of the Environmental Assessment herein. The Complaint does allege that the proposed land withdrawal is proceeding without a legal and proper environmental impact study. Also, the pleading contends that the Navy has violated NEPA by not conducting the environmental review mandated where the federal agency action will result in a significant adverse impact on the quality of human life in Nevada. Again, in the prayer for relief, Plaintiffs ask that the Secretary of the Navy be required to conduct a proper impact study.

Further, acceptance of the Magistrate’s recommendation that the motion for summary judgment be denied on the NEPA issue would not prejudice Defendants on the merits. They still would be free to establish that their Environmental Assessment satisfies the requirements of NEPA. Their argument that the issue before the Magistrate was the existence of environmental documentation, and not its adequacy, will not sustain the granting of a summary judgment.

On page 9 of their objections to the Magistrate’s Report and Recommendation, “Defendants reiterate that they have conducted a proper Environmental Assessment, properly concluded that the land withdrawal involved no significant impact, and properly published the conclusion.” If there exists no genuine issue as to any material fact concerning the adequacy of the Assessment, Defendants would be entitled to summary judgment on the NEPA claim for relief.

42 U.S.C. § 4332(2)(C) requires a detailed environmental impact statement whenever proposed legislation would significantly affect the quality of the human environment. The Environmental Assessment prepared by the Navy is not the same as an EIS. In fact, 40 C.F.R. § 1501.4(b) (1985) calls for the preparation of an environmental assessment in order for the Federal agency to determine whether to prepare an EIS. Steamboaters v. F.E.R.C., 759 F.2d 1382, 1392-93 (9th Cir.1985). The agency’s determination that there will be no significant impact, i.e., the preparation of an EIS is not required, will not be disturbed unless that determination is unreasonable. Id. at 1392; Colorado River Indian Tribes v. Marsh, 605 F.Supp. 1425, 1432 (D.C.Cal.1985).

The decision whether to prepare an EIS is not committed to the agency’s discretion; an EIS must be prepared for an action that may significantly affect the quality of the human environment. Foundation for North Am. Wild Sheep v. U.S., 681 F.2d 1172, 1177 n. 24 (9th Cir.1982). “The standard for determining whether the implementation of a proposal would significantly affect the quality of the human environment is whether ‘the plaintiff has alleged facts which, if true, show that the proposed project may significantly degrade some human environmental factor.’ ” (Citation omitted, emphasis in original.) Id. at 1177-78. The plaintiffs need not show that significant effects will in fact occur; an EIS must be prepared if they raise substantial questions as to whether the project may have such effects. Id. at 1178; Steamboaters v. F.E.R.C., at 759 F.2d 1392. The cumulative impact must be addressed, that is, the impact of the new proposal on the environment when added to past, present and reasonably foreseeable future actions. Colorado River Indian Tribes v. Marsh, at 605 F.Supp. 1433. It is interesting to note that the Government saw fit to prepare an EIS before stationing a new type of jet aircraft at a long-established air base. See Westside Property Owners v. Schlesinger, 597 F.2d 1214, 1216 (9th Cir.1979). An EIS is usually required where there is an irreversible and irretrievable commitment of a public resource, rather than a mere continuation of the status quo. Confederated Tribes and Bands v. F.E.R.C., 746 F.2d 466, 476 (9th Cir.1984).

Plaintiffs have raised genuine issues of material fact as to whether implementation of the proposed legislation may significantly degrade the quality of human environment in central Nevada. The reasonableness of Defendants’ decision not to prepare an EIS may not be decided as a matter of law on the basis of the present record.

The other findings and recommendations of the Magistrate have not been objected to, and they appear to be appropriate. In sum, after de novo review, the Report and Recommendation of Magistrate Atkins is accepted in to to.

IT IS, THEREFORE, HEREBY ORDERED as follows:

1. Defendants’ motion for summary judgment as to Plaintiffs’ Second Cause of Action, which is based on the Engle Act, is GRANTED; said claim for relief is hereby dismissed.

2. Defendants’ motion for summary judgment as to Plaintiffs’ First Cause of Action, which is based on NEPA, is DENIED.

3. Plaintiffs’ cross-motion for summary judgment is DENIED.

4. Plaintiffs’ motion for a temporary restraining order is DENIED.

5. Trial of this action on the merits shall be advanced and consolidated with the hearing on Plaintiffs’ application for a preliminary injunction, pursuant to Fed.R.Civ.P. 65(a)(2).


author: GENE CARTER, District Judge.

text:
    Howard GREENE, Plaintiff, v. UNION MUTUAL LIFE INSURANCE COMPANY, Defendant.
    Civ. No. 84-0126P.
    United States District Court, D. Maine.
    Nov. 15, 1985.

      Thomas R. McNaboe, John R. Bass, Thompson, McNaboe & Ashley, Portland, Me., for plaintiff.
    Richard G. Moon,. Perkins Thompson Hinckley & Keddy, Ann H. Mohnkern, Portland, Me., for defendant.
   OPINION AND ORDER

GENE CARTER, District Judge.

In this action Plaintiff’s claims were dismissed under Local Rule 19(c) when he failed to respond to a motion to dismiss filed by Defendant. The Court denied Plaintiff’s motion for reconsideration on the grounds that Plaintiff had not shown under Fed.R.Civ.P. 60(b) that the failure to respond was the result of excusable neglect. On appeal, the Court of Appeals for the First Circuit held that too much of the complaint had been dismissed since the motion which the Court had granted had requested dismissal only of Counts III and IV and certain requests for relief in Counts I and II. Therefore, the Court mandated reinstatement of Counts I and II. Since the whole case had not been properly dismissed, the Court found that the dismissal of Counts III and IV and portions of Counts I and II was an interlocutory order. Motions for reconsideration of interlocutory orders are, the Court of Appeals held, properly addressed to the inherent authority of the Court and should not be considered under the more rigid standards of Rule 60(b). Therefore, the Court of Appeals remanded the case for this Court to consider Plaintiff’s motion for reconsideration under the appropriate “interests of justice standard.” That is the proceeding now before the Court.

In assessing where the interests of justice lie, the Court will consider first the factors suggested by the Court of Appeals in its opinion remanding the case: egregiousness of the noncompliance, prejudice caused to the moving party by the delay; proffered excuse for the delay; and prejudice to the unwitting Plaintiff, who was not personally involved in the delay. Noncompliance by Plaintiff’s attorney was not egregious; there was only a six-day delay in the filing of the objection to the motion to dismiss. As the Court of Appeals noted, no prejudice was occasioned to Defendant by the delay. The neglect of counsel was plainly that. He has offered no suitable excuse for the late filing. It is clear, as this Court has stated on many occasions, that such neglect inhibits the orderly function of the Court.

The Court of Appeals seemed to agree with Defendant that there was little prejudice occasioned to the Plaintiff by dismissal of the claims because his “basic claim” of age discrimination was reinstated by that Court. Greene v. Union Mutual Life Insurance Co., 764 F.2d 19, 23 (1st Cir.1985). This Court thinks, however, that Plaintiff has raised some provocative issues of Maine law in his pleadings, the resolution of which may result in significantly different measures of relief being available to Plaintiff. Plaintiff, therefore, will possibly be seriously prejudiced if the motion to dismiss is not addressed on its merits. On balance, then, after considering the factors suggested by the Court of Appeals, this Court finds that the interests of justice require setting aside the order dismissing Counts III and IV and the prayers for relief in Counts I and II not reinstated by the order of the Court of Appeals.

This finding is reinforced by the fact that aside from this one procedural lapse, Plaintiff’s counsel has been diligent in the prosecution of this case. Soon after the missed deadline, he filed the appropriate objection and memorandum. Apart from the litigation engendered over Rule 19(c), the litigation of this case was not substantially delayed nor the docket disrupted by the failure to file. See Denman v. Shubow, 413 F.2d 258 (1st Cir.1969).

Enforcement of the Local Rule is imperative to the proper functioning of the Court and is not to be lightly regarded. The Court is satisfied, however, that despite the plain violation of Rule 19(c), there are enough mitigating factors in the present posture of this case to warrant setting aside the order dismissing Plaintiff’s claims in the interest of justice. Costs and attorney’s fees for proceedings concerning the motion to set aside Plaintiff’s claims will serve no cogent purpose at this time.

COUNT I

With the reinstatement of these claims, the Court must now address Defendant’s motion to dismiss on the merits. Defendant first argues that the portion of Count I seeking compensatory damages for pain and suffering under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., should be dismissed. The Court agrees. In 1976 the Court of Appeals for the First Circuit reversed a district court’s finding that such damages were available. Vazquez v. Eastern Air Unes, Inc., 579 F.2d 107 (1st Cir.1978). In that opinion the Court left open the possibility that at some time in the future inference of such damage remedies might be necessary to effectuate the goals of the statute. In 1982, the Court again described the damages available under the ADEA. Citing Vazquez, among others, the Court stated: “Unlike the tort plaintiff, the plaintiff suing under the ADEA may recover only ‘those pecuniary benefits connected to the job relation.’ ... Pain and suffering form no part of the damages.” Kolb v. Goldring, 694 F.2d 869, 872 (1st Cir.1982) (citations omitted).

Plaintiff suggests that because he has suffered little pecuniary damage the ADEA will be ineffective to redress the alleged age discrimination unless it is construed to provide damages for humiliation and suffering. Therefore, he argues that the First Circuit, despite its recent pronouncement, will reconsider its rule. Plaintiff also points the Court to several district court opinions which have permitted such awards to effectuate the Act’s goals. Sometime after the opinions in those cases were issued, however, each of the circuits in which the district courts sit disavowed the position now advanced by Plaintiff. At present, at least ten circuits have decided that damages for pain and suffering and emotional distress are not available under the ADEA. See Haskell v. Kaman Corp., 743 F.2d 113, 121, n. 2 (2d Cir.1984).

In light of the prevailing authority in the First and nine other circuits, this Court finds that damages for pain and suffering and emotional distress are not available under the ADEA and that the portion of Count I seeking such damages should be dismissed.

COUNT II

Defendant also asserts that Count II should be dismissed to the extent that it seeks damages for pain and suffering and humiliation. Count II seeks relief for alleged discrimination under the Maine Human Rights Act, 5 M.R.S.A. § 4613. Both the First Circuit and this Court have determined that damages for pain and suffering and humiliation are not available under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. See, e.g., DeGrace v. Rumsfeld, 614 F.2d 796, 808 (1st Cir.1980); Curran v. Portland Superintending School Committee, 435 F.Supp. 1063, 1077 (D.Me.1977). The Maine Human Rights Act has been consistently construed by the Maine Supreme Judicial Court to parallel Title VII. See, e.g., Maine Human Rights Commission v. City of Auburn, 425 A.2d 990, 996 (Me.1981); Wells v. Franklin Broadcasting Corp., 403 A.2d 771, 773, n. 4 (Me.1979); Maine Human Rights Commission v. Local 1361, United Paperworkers International Union, AFL-CIO, 383 A.2d 369 (Me.1978); see also Percy v. Allen, 449 A.2d 337 (Me.1982); Perez v. State of Maine and Department of Manpower Affairs, 585 F.Supp. 1535 (D.Me.1984). Therefore, although 5 M.R.S.A. § 4613(2) does indeed, as Plaintiff suggests, provide the Court with discretion to specify “an appropriate remedy or remedies” for discrimination, the Court finds that such remedies would not be construed to include compensatory damages for pain and suffering and mental distress.

COUNT IV

Defendant has also moved to dismiss Count IV on the grounds that Maine does not recognize the tort claim of wrongful or bad faith discharge. Quite recently the Law Court addressed, but did not resolve the issue in the case of Larrabee v. Penobscot Frozen Foods:

Although many other jurisdictions now recognize an action for wrongful discharge, the majority limit the cause of action to when the employer’s motives violate some clearly defined policy____ We do not rule out the possible recognition of such a cause of action when the discharge of an employee contravenes some strong public policy.

486 A.2d at 100 (citations omitted). It is clear that the alleged discharge on the basis of age would violate the public policy against age discrimination expressed in the ADEA and the Maine Human Rights Act. The fact that such a public policy exists is not, however, determinative of the issue.

A remedy to vindicate the public policy against age discrimination in Maine has been set forth in great detail in the Maine Human Rights Act. Creation of a new tort would duplicate the remedies already provided for the statutorily-created right to be free from age discrimination, and is, therefore, not necessary or proper. See Crews v. Memorex Corporation, 588 F.Supp. 27, 29 (D.Mass.1984) (citing Restatement (Second) of Torts § 874A (Tent.Draft No. 23-1977)). Moreover, creation of the common law action based on the public policy against age discrimination would disrupt the delicate balance represented by the remedial scheme set forth in the statute. See Crews, 588 F.Supp. 27. For example, the Human Rights Act and ADEA have prescribed statutes of limitations, conciliation provisions and damages provisions which would be undermined by allowance of a new tort remedy.

The foregoing considerations in varying combinations have led many federal courts interpreting state law to find that no common law cause of action exists when a statute has created a right and a remedial scheme for vindication of that right. See, e.g., Trembath v. St. Regis Paper Co., 753 F.2d 603 (7th Cir.1985); Crews, 588 F.Supp. 27; Pierce v. New Process Co., 580 F.Supp. 1543 (E.D.Pa.1984); aff'd, 749 F.2d 27 (3d Cir.1984); Wehr v. Burroughs Corp., 438 F.Supp. 1052 (E.D.Pa.1977), aff'd, 619 F.2d 276 (3d Cir.1980); Mahoney v. Crocker National Bank, 571 F.Supp. 287 (N.D.Cal.1983); Chekey v. BTR Realty, 575 F.Supp. 715 (D.Md.1983); McCluney v. Joseph Schutz Brewing Co., 489 F.Supp. 24 (E.D. Wis.1980); Schroeder v. Dayton Hudson Corp., 448 F.Supp. 910 (E.D.Mich.1977); contra, Savage v. Holiday Inn Corp., Inc., 603 F.Supp. 311 (D.Nev.1985); Placos v. Cosmair, Inc., 517 F.Supp. 1287 (S.D.N.Y.); McKinney v. National Dairy Council, 491 F.Supp. 1108 (D.Mass.1980).

In predicting what the Maine courts would do if faced with the question, the Court finds that the Maine court, like the above-listed courts, would be loathe to tamper with the scheme which the legislature has established when there is no need to do so to provide Plaintiff with an adequate remedy. The Court holds, therefore, that no common law action exists under Maine law for wrongful discharge in violation of the public policy against age discrimination.

COUNT III

In Count III Plaintiff alleges that Defendant breached an express or implied contract with him by discharging him without just cause. Plaintiff alleges that the terms of the contract were established by the conduct of the employer as well as by the written personnel policies, handbooks, documents, manuals and performance review procedures. In the case of Larrabee v. Penobscot Frozen Foods, 486 A.2d 97, 99-100 (Me.1984), the Law Court held that parties may agree to an employment contract that is terminable by the employer only pursuant to particular terms such as “for good cause.” The terms of the employment contract may be found in employment information documents and other communications between the employer and employee. See, e.g., Wyman v. Osteopathic Hospital of Maine, Inc., 493 A.2d 330 (Me.1985).

Defendant argues that Plaintiff has not alleged with specificity the substance of the express agreement or breach. The Court disagrees. It has long been established that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)). Moreover, in considering a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6), the complaint is to be liberally construed and is viewed in the light most favorable to the plaintiff. Id.

The complaint in this action alleges in pertinent part:

25. Defendant provided the Plaintiff and required the Plaintiff to act in accordance with written personnel policies, handbooks, documents, manuals, and performance review procedures, all of which established an actual express contract of employment between Defendant and Plaintiff, the terms of which were violated by employer’s unwarranted discharge of Plaintiff.
26. The conduct of employer, together with the policies and procedures expressly adopted and imposed by the employer, gave rise to an implied contract between Defendant and Plaintiff that Defendant would deal with Plaintiff in good faith and that Plaintiff would not be discharged without just cause.
27. In April of 1982, Plaintiff was removed from his position as Second Vice President-Risk Management without just cause in violation of the express and/or implied contract of employment which existed between Plaintiff and Defendant____

It is clear to the Court that if one reads the three paragraphs together, Plaintiff has, for pleading purposes, adequately stated a claim under Larrabee.

Count III seeks “all damages, losses and expenses arising out of Defendant’s violation and breach of employment contract.” Defendant contends that that prayer for relief should be dismissed because it does not specify the special damages which were in the contemplation of the parties at the time of the making of the contract. Rule 9(g) of the Federal Rules of Civil Procedure provides that special damages must be specifically pleaded.

The Court finds that Count III does not state with adequate specificity the special damages sought. Plaintiff has, however, in his memorandum requested leave to amend the pleadings to allege damages with more specificity. Under Fed.R.Civ.P. 15(a), leave to amend “shall be freely given when justice so requires.” The Court can see no possible prejudice to Defendant in allowing amendment at this time and will grant Plaintiff’s motion to amend.

The Court further finds that punitive damages are not available under Count III, which sets forth Plaintiff’s breach of contract claim. In Forbes v. Wells Beach Casino, 409 A.2d 646, 655 (Me.1979), the Law Court stated that “[a]s a general rule, exemplary damages are not recoverable for a breach of contract.” Plaintiff argues that this is not a case which fits the general rule because the breach of contract in this case is tortious. In In re Blier Cedar Company, Inc., 7 B.R. 195, 196 (Bankr.Me.1980) (Cyr, J.), the Bankruptcy Court for the District of Maine acknowledged Forbes v. Wells Beach Casino, but stated that “punitive damages may be awarded in an action for breach of contract where the acts constituting the breach also amount to a willful, independent tort. It is upon the underlying tortious conduct that punitive damages are based.” The Court has decided above that Maine law does not recognize the tort of wrongful discharge in violation of the public policy of age discrimination. Since no independent tort exists, there exists no basis for punitive damages, see id., and that portion of Count III seeking them must be dismissed.

Defendant’s final contention is that Plaintiff’s claims for attorney’s fees, set forth in paragraph 4 of Count III, should be dismissed. Attorney’s fees are not available in a contract action in the absence of an agreement by the parties providing for such an award. Interstate Industrial Uniform Rental, Inc. v. Couri Pontiac, Inc., 355 A.3d 913, 923 (Me.1976). Plaintiff in this ease has not alleged any agreement regarding attorney’s fees. Therefore, that portion of Count III seeking attorney’s fees will be dismissed.

Accordingly, it is ORDERED that Plaintiff’s Motion for Reconsideration be, and is hereby, GRANTED. Defendant’s Motion to Dismiss is GRANTED as to the claims for compensatory damages as set forth in paragraph 3 of the prayer for relief in both Counts I and II. Defendant’s Motion to Dismiss Count III is hereby DENIED except to the extent that Count III asserts a prayer for punitive damages and a prayer for attorney’s fees. The prayer for punitive damages set forth in paragraph 3, and that for attorney’s fees in paragraph 4, of the prayer for relief in Count III are hereby DISMISSED. Plaintiff is hereby ORDERED to file by November 22, 1985, any amendment to the complaint specifying compensatory damages. Count IV is hereby DISMISSED. Defendant’s motion for award of attorney’s fees for having to defend meritless claims is hereby DENIED.

      . The ruling of the Court of Appeals poses an interesting theoretical problem for this Court. If a defendant moves to dismiss all claims and the motion is granted and judgment subsequently entered under Rule 19(c) for failure to object, any motion for reconsideration must be considered under the guidelines set forth in Fed.R. Civ.P. 60(b), according to this circuit’s Court of Appeals. If however, a defendant moves to dismiss only some of plaintiffs claims and the motion is granted and judgment entered under Rule 19(c), a motion for reconsideration is addressed to the sound discretion of the Court and is to be decided “in the interests of justice.” In general, that standard has been construed as being more flexible and lenient than the “excusable neglect" standard in Rule 60(b). The two different standards parallel those applied in motions to set aside entry of default and to set aside the entry of default judgment. The significant difference in the situation presented here is that the mere fortuity of the breadth of a defendant’s motion to dismiss determines whether the stricter or more lenient standard will apply. In the case of default, the heightened standard reflects the temporal progression of the case. Before its application, plaintiff has the opportunity to have the default set aside under the lesser standard.
      In order to ameliorate what the Court sees as a potential unfairness in the fortuitous application of differing standards for reconsideration of decisions made under Rule 19(c), the Court will institute the following procedure. Presently, when a decision is issued under Rule 19(c), the parties receive notification of the granting of the motion without objection, and judgment is not entered for a period after that. From the date of this Order, the notice to the parties will advise them that judgment will be entered twenty (20) days from the date of the Rule 19(c) order. Any motion for reconsideration filed before entry of judgment will be considered under the "interests of justice” standard.
      After judgment, Rule 60(b) will be applied to those motions for reconsideration of cases which have been dismissed in their entirety. As the Court of Appeals has instructed, the "interests of justice” standard will again be applied to cases in which only portions of the complaint have been dismissed. In exercising its discretion in this post-judgment situation, however, the Court will weigh heavily the delay in moving for reconsideration and will scrutinize with great care the excuse given for failure to object to the granted motion in a timely fashion. By permitting every motion for reconsideration to be considered under the "interests of justice” standard if it is filed before entry of judgment on the motion, the Court feels any potential unfairness has been avoided. The Court notes that under the procedure here announced, Plaintiffs motion for reconsideration, filed before the twenty-day period had passed, would have been considered under the "interests of justice” standard.

      . Defendant, in accordance with the Court’s Scheduling Order, has filed a new memorandum addressing Plaintiffs motion for reconsideration and the merits of its own motion to dismiss. Appended to that memorandum is the affidavit of Ward Graffam, an official of Union Mutual. Under Fed.R.Civ.P. 12(b), if matters outside the pleadings are submitted to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. In this case the Court finds it expeditious to exclude the proffered affidavit and address the merits of the motion to dismiss as it was initially postured. By doing so, the Court may define the parameters of the case, avoiding delay that might occur while Plaintiff responded to the supplementary material. Of course, Defendant may still bring the material to the attention of the Court in a motion for summary judgment, if cause for such a motion still exists after the motions to dismiss have been resolved.