author: KATZ, District Judge.

text:
    Kathleen J. PETERS, Executrix of the Estate of Michael C. Peters, Deceased v. UNITED STATES of America Federal Aviation Administration.
    Civ. A. No. 82-4803.
    United States District Court, E.D. Pennsylvania.
    Oct. 26, 1984.

      Kathleen L. Daerr-Bannon, Daerr-Bannon & Kolber, Philadelphia, Pa., for plaintiff.
    Susan M.H. Gillett, Torts Branch, Civil Litigation Div., U.S. Dept, of Justice, Washington, D.C., for defendant.
   FINDINGS OF FACT

KATZ, District Judge.

1. This is an action brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, et seq., to recover damages for the death of Michael C. Peters in an airplane crash near Locust Grove, Virginia at approximately 7:08 P.M. EST on November 25, 1979, while Mr. Peters was flying from the Washington, D.C. area to Lynchburg, Virginia.

2. This action has been brought by Kathleen J. Peters, Mr. Peter’s widow and the personal representative of his estate.

3. At the time of his death, Mr. Peters, age 42, held a valid, single engine, private pilot license issued by the FAA. This license permitted him to operate single engine aircraft.

4. Mr. Peters was an experienced pilot. He had approximately 600 hours of flight time. He had flown in the D.C. area and the Lynchburg, Virginia area before.

5. On November 25, 1979, Mr. Peters was qualified to undertake a night cross-country flight in visual meteorological conditions in a single engine aircraft from College Park, Maryland to Lynchburg, Virginia.

6. Mr. Peters was not IFR (instrument flight rules) qualified. He was, therefore, not allowed to fly in instrument meteorological conditions, which exist when there is a “ceiling” of less than 1000 feet and/or visibility of less than three miles. A ceiling exists at the altitude at which the sky is described as “overcast” or at which cloud cover is described as “broken.” Conditions are broken when clouds cover three-fifths to nine-tenths of the sky. Conditions are scattered when clouds cover one-tenth to less than one-half of the sky. The sky is overcast when more than nine-tenths is covered with clouds.

7. Mr. Peters was a VFR (visual flight rules) pilot. He was qualified to fly whenever the ceiling was 1000 feet or higher and visibility was three miles or more.

8. Marginal VFR conditions exist when the ceiling is between 1000 and 3000 feet and/or visibility is between three and five miles.

9. At the time of the accident, Mr. Peters was flying N7650D, a small single engine airplane known as a Piper “Tri-Pacer.” Mr. Peters had purchased the plane in 1972.

10. At the time of the accident, Mr. Peters was flying from College Park, Maryland to Lynchburg, Virginia in order to attend a business meeting in Lynchburg at 8:15 A.M. on November 26, 1979.

11. Mr. Peters was not suffering from any mental or physical condition which contributed in any way to the accident.

12. N7650D was airworthy on the date of the crash. There is no evidence that mechanical failure contributed in any way to the accident.

13. The aircraft was equipped with navigation and communications equipment including a transponder. A transponder is equipment which enables air traffic control radar facilities to locate an aircraft. The aircraft did not have a DME, distance measuring equipment, optional equipment which permits the pilot to measure his distance from a navigational aid on the ground.

14. A VOR is a ground-based electronic navigation aid which transmits very high frequency navigation signals for 360 degrees.

15. A flight service station (FSS) is an FAA air traffic facility which provides services to airmen, including weather briefings to pilots.

16. Before starting his trip on November 25, 1979, Mr. Peters called flight service stations twice, once in the morning and once in the early part of the afternoon. The purpose of both calls was to obtain weather information. There is no record of what information the decedent received during these two conversations.

17. Mr. Peters flew from Doylestown, Pennsylvania to College Park, Maryland in the afternoon of November 25, 1979.

18. At 6:07 P.M. EST, Mr. Peters placed a telephone call to the Flight Service Station in Leesburg, Virginia, the nearest such facility to College Park, Maryland. He spoke to Marquette Bradley, a flight service station specialist. Mr. Bradley was responsible for briefing pilots on weather information. The conversation lasted until 6:09 P.M. EST. Their conversation was taped.

19. Mr. Bradley began to give Mr. Peters the latest Lynchburg weather. The decedent then interrupted Mr. Bradley’s briefing to ask about the “dry bulb dew-point spread” for Lynchburg. Mr. Bradley told Mr. Peters: “Sure ah temperature is six seven dewpoint six three.”

The dry bulb dewpoint spread indicates the likelihood of fog. Decedent asked the briefer whether any fog was predicted “down there.”

20. At this point in their conversation, Mr. Bradley told Mr. Peters that the forecast after nine p.m. local time was for “ceiling of fourteen hundred overcast, three miles light rain and fog but a variable ceiling of five hundred broken one mile rain and fog with a chance of thunderstorms. Mr. Peters responded to this by stating: “O’boy I think we’d better get down there quick.”

21. The conditions forecast for Lynch-burg after 9 P.M. were IFR conditions in which Mr. Peters was not authorized to fly.

22. A flight from College Park to Lynchburg in a Piper Tri-Pacer would take between one and two hours.

23. Mr. Bradley then informed Mr. Peters that the forecast for before 9 P.M. was for a ceiling of three thousand broken with occasional visibility of three miles and light rain showers. These were marginal VFR conditions. If visibility slipped below three miles, conditions would have been I.F.R.

24. Mr. Peters next statement was: “O.K. that doesn’t sound too bad.” At this point, decedent asked Mr. Bradley for a frequency to enable Mr. Peters to obtain clearance to penetrate a restricted area around Washington, D.C. Mr. Bradley provided the appropriate frequency. Mr. Peters then terminated the conversation.

25. It was Mr. Bradley’s practice in briefing pilots to answer the pilot’s specific questions before gathering information about the pilot’s trip and providing a complete weather briefing.

26. Charlottesville, Virginia is between College Park, Maryland and Lynchburg, Virginia. Mr. Bradley did not report to Mr. Peters surface weather observations taken at the Charlottesville Airport at 4:46 P.M. and 5:54 P.M. EST.

27. The Charlottesville weather observations showed the existence of marginal VFR conditions. The briefer’s forecast for the weather before 9 p.m. accurately summarized the information available to the briefer. The Charlottesville observations essentially confirmed the information Mr. Bradley gave to Mr. Peters. The briefer's failure to convey the Charlottesville reports was not a substantial factor in causing the crash.

28. Mr. Bradley did not read to Mr. Peters an area forecast transmitted by the National Weather Service at 7:40 A.M. and amended at 12:15 P.M. This forecast predicted ceilings at or below 1000 feet with visibility at or below three miles for mountainous sections of Virginia, West Virginia, North Carolina, South Carolina and remainders of Maryland and the District of Co-' lumbia.

29. While still valid, the area forecast was approximately six hours old. Mr. Bradley gave decedent forecasts which were more recent and more specific to the area of Mr. Peters’ flight. Moreover, the briefer’s forecast for after 9 p.m. was subsantially the' same as the area forecast. The briefer’s failure to convey the area forecast was not a substantial factor in causing the crash.

30. Mr. Peters knew that weather conditions before 9 p.m. would be marginal VFR and after 9 p.m. would be IFR. Every student pilot receives some instruction in analyzing weather. Mr. Peters, an experienced pilot, should have known that predictions of when bad weather will occur are often inaccurate. Despite this, Mr. Peters interrupted Mr. Bradley more than once and cut short the briefing. Decedent wanted specific answers to his questions. He did not allow Mr! Bradley to give him a complete briefing.

31. Plaintiff has not met her burden of showing negligence in Mr. Bradley's pre-flight briefing. While recognizing that the weather briefing could have been more detailed, the information provided was adequate to put Mr. Peters on notice that conditions were marginal and were likely to deteriorate.

32. Mr. Bradley’s briefing of Mr. Peters was not the proximate cause of the accident.

33. Mr. Peters departed from the College Park, Maryland airport, northeast of Washington, D.C., shortly after 6:09 P.M.

34. The first known contact by Mr. Peters with an FAA facility was at 7:04 P.M. EST. At that time, Mr. Peters contacted the Charlottesville Airport Control Tower, a facility without equipment to locate aircraft by radar.

35. Mr. Peters communicated with Mr. William Maki, an Air Traffic Controller who was at the Charlottesville Tower’s “local control position.” During the time Mr. Peters and Mr. Maki were in radio communications, Mr. Maki was also engaged in separating IFR aircraft within five miles of the control tower.

36. At 7:04:51, decedent told Mr. Maki that “the weather is doing worse than predicted.” He then said: “We’re VFR uh how’s that Charlottesville visibility look to you on the ground.” Although the weather had deteriorated, Mr. Peters was still in VFR conditions at that time.

37. After assisting a Piedmont aircraft on an instrument approach, Mr. Maki responded at 7:05:08 to decedent’s request. He told Mr. Peters that visibility at the airport was six miles and that there was a measured ceiling of one thousand feet. Mr. Maki then gave Mr. Peters a safety advisory that the ridges to the east were possibly totally obscured and that the highest obstruction was at eighteen hundred and thirty feet.

38. The decedent knew or should have known that a one foot drop in the ceiling would have created IFR conditions at Charlottesville Airport. He also knew or should have known that conditions were likely to deteriorate further.

39. When the ceiling is reported as overcast, it means that more than nine-tenths of the sky is covered with clouds. A reasonable pilot should have understood Mr. Maki’s information to mean that he could not land at Charlottesville without flying through instrument conditions.

40. Mr. Maki was not negligent for failing to report that there was fog in all quadrants around the airport. This would not have added substantially to the adverse weather information the controller had already conveyed. The failure to convey that specific information was not a substantial factor in causing the accident.

41. Mr. Maki asked decedent at 7:05:59 what his intentions were. Mr. Peters responded that he was going to “climb and look for a hole to come down V.F.R.”

42. At 7:06:11, Mr. Maki asked decedent whether he was IFR qualified.

43. After Mr. Peters responded in the negative, Mr. Maki asked if he was “on top,” i.e., above the overcast.

44. Mr. Peters stated that his altitude was twenty-five hundred feet and he was “kind of weaving through scattered layers.” At this point, Mr. Peters had not indicated that he was unable to maintain VFR conditions.

45. At 7:06:26, Mr. Maki asked the decedent if he was over the Gordonsville VOR. Mr. Peters responded that he was about five miles Northeast of Gordonsville VOR.

46. Mr. Peters could not have been at the position he reported. Given the airplane’s cruising speed, decedent could not have travelled from five miles northeast of the Gordonsville VOR to the crash site by the time of the crash.

47. At 7:06:43, Mr. Maki asked Mr. Peters if his aircraft was equipped with a transponder. A transponder is equipment which can assist a radar facility in locating and identifying an airplane.

48. At 7:07:17, Mr. Peters responded that he was transponder-equipped. He then stated: “We’re getting into some IFR so, ah, I think we’re going to have to see if we can get Washington Center and ah retreat towards D.C. or some better ah VFR weather.”

49. This was the first indication to Mr. Maki that Mr. Peters could no longer maintain VFR conditions.

50. At the time of this communication, Mr. Peters was still proceeding south.

51. Mr. Peters statement that he was “getting into some IFR” indicated that he had entered IFR conditions, violating federal regulations for a VFR pilot.

52. Mr. Peters had control of his aircraft when he entered IFR conditions.

53. Mr. Peters could have turned back toward Washington before requesting a frequency for contacting Washington Center and should have turned back before entering IFR conditions.

54. Mr. Peters’ request for a frequency at 7:07:17 took approximately ten seconds to transmit. At 7:07:29 Mr. Maki told decedent that he would call Washington Center in order to obtain a radio frequency for Mr. Peters. Mr. Peters thanked Mr. Maki at 7:07:34. Four seconds later, communication was established between Charlottesville Tower and Washington Center. Mr. Peters’ request for a frequency was relayed.

55. At 7:07:39, a Piedmont Airliner informed Mr. Peters that conditions around Charlottesville were “solid instruments.”

56. Mr. Peters thanked the Piedmont pilot for the information at forty-six seconds past 7:07 p.m. This was the last communication from Mr. Peters.

57. At 7:08:05 Charlottesville Tower asked Mr. Peters about his fuel supply. There was no response. N7650D crashed near Locust Grove, Virginia between 7:07:50 p.m. and 7:08:10 p.m.

58. Both parties have stipulated that the cause of the crash was spatial disorientation. Spatial disorientation is a physiological and psychological condition which can occur in flight conditions when there is no visual reference to earth, sun, and stars. Spatial disorientation, even for a short period of time, can render a pilot incapable of controlling his aircraft. Mr. Peters suffered spatial disorientation by flying into instrument conditions. Before flying into instrument conditions, a pilot exercising reasonable care for his own safety would have turned back to the Washington, D.C. area.

59. It was not negligent for the Charlottesville Tower to wait for Mr. Peters’ request before contacting Washington Center to obtain a frequency. Mr. Peters never declared an emergency. Mr. Maki ascertained the decedent’s situation, provided him with relevant safety and weather information, and assisted him in carrying out his intentions. The controller acted in a reasonable way under the circumstances.

60. There was an emergency when Mr. Peters notified the tower that he had penetrated IFR conditions. At that time, Charlottesville Tower acted quickly and efficiently in obtaining a radio frequency to allow Mr. Peters to contact Washington Center.

61. Even if Mr. Maki had considered Mr. Peters’ situation an emergency from the decedent’s first contact, the air traffic controller acted at all times in accordance with Air Traffic Control Manual 7110.65A in dealing with the situation.

62. Mr. Maki’s conduct was not a substantial factor in causing Mr. Peters’ accident.

63. Mr. Peters noticed that the weather enroute was worse than predicted and knew or should have known that conditions were likely to deteriorate.

64. Plaintiff’s principal expert witness exaggerated both his qualifications and his substantive testimony that “once he [Mr. Peters] departed, he is dead.” His qualifications as a pilot expert are doubtful. His testimony about the significance of Mr. Bradley’s briefing failed to recognize a pilot’s responsibility for his own safety.

65. Defendant’s expert witnesses were believable.

66. By rushing the weather briefing, failing to retreat to the Washington area when he knew that the weather was worse than predicted, looking for a hole to come down in the clouds at Charlottesville, and flying in instrument conditions without having an IFR rating, Mr. Peters did not act with reasonable care for his own safety-

67. Mr. Peters’ own negligence was a substantial factor in causing accident.

CONCLUSIONS OF LAW

1. This Court has jurisdiction of the parties and subject matter of this dispute.

2. Venue for this action lies in the Eastern District of Pennsylvania.

3. This action was brought pursuant to the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671, et seq.

4. Under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b) and 2671 et seq., the law of the place where the alleged act or omission occurred is applicable. In this case, the Virginia law on negligence and contributory negligence applies.

5. In Virginia, the ordinary rules of negligence and due care apply in aviation cases. Mackey v. Miller, 221 Va. 715, 273 S.E.2d 550 (1981).

6. Virginia law defines proximate cause as that act or omission which in natural and continuous sequence, unbroken by an efficient, intervening cause, produces the event and without which the event would not have occurred. Wells v. Whitaker, 207 Va. 616, 151 S.E.2d 422 (1966).

7. In order for negligence to be a proximate cause of an injury, it is not necessary for a defendant to foresee the precise injury; it is sufficient if an ordinary, careful, prudent person ought, under the circumstances, to have foreseen that an injury might probably result from his negligence. Sawyer v. United, States, 465 F.Supp. 282 (E.D.Va.1978).

8. Under Virginia law, contributory negligence is a bar to recovery. Mackey v. Miller, 221 Va. 715, 273 S.E.2d 550 (1981). The plaintiff’s negligence will not bar his recovery if it contributed only slightly or trivially to his injury or was a remote cause of injury. To bar recovery, plaintiff’s negligence must be a substantial factor in causing his injury. Simpson v. Lambert Brothers Division — Vulcan Materials Co., 362 F.2d 731 (4th Cir.1966). Satisfaction of the “but for” test is not sufficient. Id.

9. The defendant has the burden of proving contributory negligence by a preponderance of the evidence. Washington v. Schuyler, 433 F.2d 362 (4th Cir. 1970). Virginia law presumes that an injured party exercised ordinary care for his own safety. Elkins v. United States, 429 F.2d 297 (4th Cir.1970).

10. The test for contributory negligence in Virginia is whether the plaintiff, in the exercise of reasonable care, should have known he was in a situation of peril. Reed v. Carlyle and Martin, Inc., 214 Va. 592, 202 S.E.2d 874, cert. denied, 419 U.S. 859, 95 S.Ct. 108, 42 L.Ed.2d 93 (1974). Mr. Peters should have known he was entering IFR conditions and turned back.

11. Under Virginia law, contributory negligence in responding to danger is not a bar where the cause of the accident was that defendant failed to warn plaintiff of the danger in question or gave an insufficient warning in breach of a duty. Briggs v. Zotos International, Inc., 357 F.Supp. 89 (E.D.Va.1973); Spruill v. Boyle-Midway, Inc., 308 F.2d 79 (4th Cir. 1962). In this case, however, Mr. Bradley’s weather briefing was sufficient to warn the plaintiff of the likelihood of bad weather.

12. Michael Peters, the pilot, had responsibility for the operation of his aircraft. 14 C.F.R. § 91.3; Spaulding v. United States, 455 F.2d 222 (9th Cir.1972).

13. When the weather began to deteriorate, Mr. Peters knew or should have known that he would encounter IFR conditions. A pilot “cannot ignore the weather information he has been given or disregard the weather conditions he sees around him.” Spaulding v. United States, 455 F.2d at 227. The decedent’s “penetration into the clouds knowing that he could not navigate visually within them was as imprudent an act as diving into mid-ocean without knowing how to swim____” Black v. United States, 441 F.2d 741, 745 (5th Cir.1971).

14. Michael Peters was negligent in not allowing the FSS briefer to finish his presentation and in failing to execute a 180 degree turn when the weather began to deteriorate.

15. If a VFR pilot is in control of his aircraft, it is negligent for him to operate his aircraft in instrument weather conditions. 14 C.F.R. § 61.3; Gatenby v. Altoona Aviation Corp., 407 F.2d 443 (3d Cir.1968); Travelers Insurance Co. v. Riggs, 671 F.2d 810 (4th Cir.1982). Mr. Peters was in control of N7650D when he entered IFR weather. His violation of 14 C.F.R. § 61.3 constituted negligence.

15A. Michael Peters’ negligent acts were the sole proximate cause of the crash of N7650D.

16. Marquette Bradley’s weather briefing was not negligent. Mr. Peters was in a hurry, interrupted the briefing and terminated the conversation before Mr. Bradley could finish his presentation.

17. Mr. Bradley gave sufficient weather information to Mr. Peters. Mr. Bradley’s briefing was not a substantial factor in causing Mr. Peters’ accident.

18. William Maki acted in accordance with the provisions of the FAA’s Air Traffic Controllers’ Handbook.

19. “No duty is imposed upon controllers to warn pilots not to enter IFR weather conditions without a clearance, nor are they required to foresee or anticipate the unlawful or negligent ... acts of pilots.” Baker v. United States, 417 F.Supp. 471, 488 (W.D.Wash.1975).

20. William Maki gave sufficient information about the weather conditions at Charlottesville Airport to decedent.

21. Mr. Maki did not delay in providing assistance for Mr. Peters. While engaged in his duty of separating IFR aircraft within five miles of the Charlottesville Airport, Mr. Maki responded quickly and efficiently to Mr. Peters’ requests. Mr. Peters had final responsibility for operating his aircraft. 14 C.F.R. § 91.3; Spaulding v. U.S., 455 F.2d 222 (9th Cir.1972). William Maki was not negligent and his conduct was not a substantial factor in causing Mr. Peters’ accident.

DISCUSSION

This suit on behalf of the estate of the pilot of a small plane seeks damages against the United States for the negligence of its employees. The plaintiffs claim that FAA personnel failed to use due care in providing a pre-flight weather briefing and in communicating with the pilot shortly before the crash. Virginia law applies and would bar the claim if the pilot’s contributory negligence was a substantial factor in causing his accident. I find that the weather briefing was adequate under the circumstances, that the handling of the flight by the air traffic controller before the crash was diligent and that the cause of the crash was the pilot’s own negligence in flying into bad weather instead of turning around.

On November 25,1979 between 6:07 P.M. and 6:09 P.M. the weather briefer in a Virginia Flight Service Station gave the pilot information by telephone that the weather conditions for flying from the Washington, D.C. area to Lynchburg, Virginia were marginal for visual (VFR), as opposed to instrument (IFR) flying conditions. This pilot was not qualified for instrument flying. The forecast was that the marginal weather conditions would worsen after 9 P.M. The pilot’s reply was, “o’boy I think we’d better get down there quick.” The briefer’s forecast of marginal conditions at Lynchburg before 9 P.M. (a ceiling of three thousand feet broken with clouds, occasional visibility of 3 miles, light rain showers) was an accurate summary of the information available to the weather briefer. The Charlottesville weather observations which were not given to the pilot essentially repeated the gist of the information conveyed that pre-9 P.M. flying conditions were marginal. The 1200 foot ceiling reported at Charlottesville was still above the 1000 foot minimum for visual flight. The multi-state area forecast was more general and less recent than the specific information given. In addition, the briefer’s forecast for worsening conditions after 9 P.M. covered the same substance as the area forecast. The pilot interrupted and cut short the weather briefer in his hurry. The briefer’s failure to convey the Charlottesville and multi-state area reports was not a substantial factor in causing the crash.

The pilot’s next communication was with the Charlottesville, Virginia air traffic control tower between approximately 7:04 and 7:07 P.M. The air traffic controller gave the pilot prompt and timely weather and safety information. He acted quickly and efficiently to put the plane into radar contact with the District of Columbia area. The tower told the pilot that the ceiling at Charlottesville was 1000 feet overcast within 15 seconds after the pilot asked for Charlottesville visibility. A reasonable pilot would understand this to mean he could not land. Additional information that there was “fog in all quadrants” would not have added substantially to the adverse weather information conveyed. The failure to convey additional information was not a substantial factor in causing the accident.

At approximately 7:08 P.M., the pilot, spatially disoriented from flying in the clouds, dove nose first into the ground. The pilot did not act with reasonable care for his own safety under the circumstances. He rushed the weather briefing, failed to retreat to the Washington area when he knew that the weather was worse than predicted, and flew into IFR weather conditions without having instrument capability.

Plaintiff’s principal expert witness exaggerated both his qualifications and his substantive testimony that “once he [Mr. Peters] departed, he is dead.” His qualifications as a pilot expert are doubtful. His testimony about the significance of the weather briefing failed to recognize a pilot’s responsibility to exercise reasonable care for his own safety when he is told that weather conditions for flying to his destination are marginal and expected to deteriorate.

Defendant’s expert witnesses were believable. While recognizing that the weather briefing could have been more detailed, the information provided was adequate for VFR flight. The pilot was trying to beat the weather and was operating in conditions in which he was not qualified to fly. The pilot’s own negligence was a substantial factor in causing the accident.


source: Caselaw Access Project

author: AUBREY E. ROBINSON, Jr., Chief Judge.

license: Public Domain

text:
    Mary MORGAN, et al., Plaintiffs, v. Marion S. BARRY, et al., Defendants.
    Civ. A. No. 81-1419.
    United States District Court, District of Columbia.
    Oct. 26, 1984.

      Nina Kraut, and Joan Gauche, Edward Rosenthal, Washington, D.C., for plaintiffs.
    Martin Grossman, Asst. Corp. Counsel, and Arthur Spitzer, American Civil Liberties Union of National Capital Area, Washington, D.C., for defendants.
   MEMORANDUM AND ORDER

AUBREY E. ROBINSON, Jr., Chief Judge.

Presented for the Court’s consideration is Plaintiffs’ Motion for an Order to Show Cause why Defendants should not be held in contempt of this Court’s Order of July 22, 1981 (Morgan Order). The Morgan Order directed, among other things, that the District of Columbia not conduct strip or squat searches of female police cases housed at the District of Columbia Detention Facility in the absence of a “reasonable suspicion that a weapon, contraband or evidence of a crime are concealed on the person or in the clothing of the arrestee which the District or its agents reasonably believe can only be discovered by a strip or squat search.”

Plaintiff Concepcion Picciotto was arrested on Saturday, September 24, 1983 for allegedly camping at Lafayette Park without a permit and therefore in violation of 36 C.F.R. § 50.27 (1983). It is undisputed that following her arrest, Plaintiff was taken to the Detention Facility and, upon notice of a home-made “helmet” worn under a wig and a suspicious bulge in the crotch area of her clothing, forced to submit to a strip and squat search. The question presented for the Court’s consideration is whether the search violated the Morgan Order and, if so, whether the single violation constitutes grounds for a finding of contempt.

An adjudication of contempt is a drastic remedy; therefore, a heavy burden of proof is placed upon the movant. The movant in a civil contempt proceeding must demonstrate by “clear and convincing evidence” that the court’s order has been violated. Washington-Baltimore Newspaper v. Washington Post, 626 F.2d 1029 (D.C.Cir.1980). Civil contempt does not exist to punish the contemnor or to vindicate the Court’s integrity. It exists as a “remedial sanction used to obtain compliance with a court order or to compensate for damage sustained as a result of noneompliance.” N.L.R.B. v. Blevins Popcorn, Co., 659 F.2d 1173, 1184 (D.C.Cir.1981). There are three stages to civil contempt proceedings. First, the Court must issue of an order; in this instance the operative order is the Morgan Order. Secondly, following disobedience of that order, there is the issuance of a conditional order finding contempt and threatening to impose a specified penalty unless the recalcitrant party complies with purgation conditions. Finally, should the party fail to purge itself of contempt, exaction of the threatened penalty is the final stage. Id.

Plaintiff requests that Defendants be adjudged in contempt and that the Court award her compensatory damages. Defendants contend that they are not in contempt of the Morgan Order because there was a “reasonable suspicion” that Plaintiff had concealed contraband on her person. Alternatively, Defendants contend that this single incident, should it constitute a violation of the Morgan Order, should not prompt the Court to find contempt. It is Defendants’ position that a “pattern or customary practice” of strip and squat searches must exist before the Court renders a finding of the drastic sanction of contempt.

There is no question that Plaintiff was forced to submit to a strip and squat search. However, the fact of the search does not alone constitute a violation of the Morgan Order. Since Plaintiff does not contest the fact of a suspicious bulge in her clothing, the Court finds that there was reasonable cause for the search. By its very terms, the Morgan Order is not violated when a search is conducted because of an arrestee’s suspicious appearance.

Moreover, Defendants’ claim of “substantial compliance” with the Morgan Order is a defense to a charge of contempt. There is no evidence that Defendants have continued to conduct strip searches of female police cases following the Morgan Order. In the absence of such evidence, the Court declines to find civil contempt. However, the Court notes that Defendants’ records of the searches conducted of female arrestees do not reflect any standardized procedure. The exhibits submitted by Plaintiffs show that the log books recording searches are sketchy and kept in a scribbled fashion. The records kept are therefore inadequate to allow Plaintiffs, or the Court, to discern whether a pattern of violation has occurred.

The Court cannot oversee the Defendants’ compliance with the Morgan Order if more accurate and descriptive records are not kept. Therefore, Defendants will be directed to reflect in its log books more specific descriptions of the searches conducted. At least the name of the arrestee, the nature of any search (e.g., pat-down, strip or squat), the property found, the property confiscated, if any, the date, time and persons present at the search should be reflected. Defendants shall make the log books available for inspection, upon request, by Plaintiffs’ counsel or their designee on a monthly basis for a period of one year from the date of this Order.

Finally, the Court notes that whether or not items were found or confiscated is not relevant; Plaintiff’s unusual wig and the suspicious bulge in her clothing provided a “reasonable suspicion” sufficient to justify the search. In addition, contrary to Plaintiff’s assertions, the log books cannot form the basis for a finding of contempt. Since the Morgan Order is ambiguous with respect to the detail of the log books, the Court must be wary of imposing a contempt sanction. Marshall v. Local Union No. 639, 593 F.2d 1297, 1303 (D.C.Cir.1979). Therefore, Plaintiffs request for an order of contempt shall be denied.


author: JOSEPH H. YOUNG, District Judge.

text:
    Robin K.A. FICKER v. CHESAPEAKE & POTOMAC TELEPHONE CO., et al.
    Civ. No. Y-83-4432.
    United States District Court, D. Maryland.
    Oct. 29, 1984.

      Robin K.A. Ficker, Bethesda, Md., pro se.
    J. William Sarver, Baltimore, Md., John M. Goodman, and Julie M. Saulnier, Washington, D.C., for defendants.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

Robin K.A. Ficker, a Maryland attorney, filed this suit against Chesapeake and Potomac Telephone Company (“C & P”) and the Reuben Donnelley Corporation (“Donnelley”) pursuant to Section 4 of the Clayton Act seeking tremble damages, 15 U.S.C. § 15, and injunctive relief, 15 U.S.C. § 26, for alleged violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. § 1, 2. Defendants now seek dismissal of the plaintiff’s complaint for failure to state a claim upon which relief may be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has failed to respond to the defendants’ motion despite having been specifically invited to do so by this Court.

According to the facts alleged by the plaintiff, defendant C & P is a Maryland corporation engaged in the telecommunications business in Maryland and elsewhere. Defendant Donnelley is a Delaware corporation under contract with C & P to publish and distribute directories containing the names, addresses, and telephone numbers of C & P subscribers (“white pages”); these directories also contain classified advertisements for business subscribers of C & P (“yellow pages”).

The complaint specifically alleges that both defendants have performed acts in Maryland in furtherance of an “unlawful attempt and conspiracy to monopolize, and an unlawful contract, combination, or conspiracy to restrain interstate commerce of the United States.” Complaint 114. These claims are based upon the defendants’ refusal to print the plaintiff’s advertisement containing price information for certain legal services offered by the plaintiff. The plaintiff contends that consumers of legal services are deprived of meaningful price comparisons for these services and are unable to locate legal services according to price because of the defendant’s refusal to publish this information in the classified advertisements. Plaintiff thus concludes that this and other such omissions deny consumers the “benefit of full, free, and open competition in the provision of [legal] services, and [that] prices for such services will remain at artificial and non-competitive levels as a result.” Complaint 1115.

Finally, the plaintiff asserts that his law practice has been injured to the extent that he has lost fees from potential clients who would have used his services (because of their cost) were it not for defendants’ actions which allegedly prevented them from doing so.

I.

For the purpose of this motion to dismiss, the plaintiff’s complaint will be construed in a light most favorable to the plaintiff, and its allegations are, therefore, taken as true. See Wright and Miller, 5 Federal Practice and Procedure: Civil § 1357 at 594 (1969) (citation^ omitted). This Court may dismiss the complaint only if 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.” Conley v. Gibson, 355 U.S. 41, 44-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). However, the Court is not bound to accept conclusory allegations concerning the legal effect of the events the plaintiff has set out if these allegations do not reasonably follow from his description of what happened. Wright and Miller, supra, at 597. A pleader is not able to rely solely on “averments that on their face comprehend activity clearly exempt from liability.” City of Gainsville v. Florida Power and Light Co., 488 F.Supp. 1258, 1264 (D.Fla. 1980) . It is apparent from the pleadings that the plaintiff has failed to allege any facts which, if true, would establish a violation under the Sherman Act and thereby entitle him to relief. Accordingly, defendants’ motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P., will be granted as to both Counts I and II of the complaint.

II.

In considering antitrust claims, both the Supreme Court, see Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162 (1951); United States v. Colgate and Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919), and the Fourth Circuit, see Virginia Academy of Clinical Psychologists v. Blue Shield, 624 F.2d 476, 483 (4th Cir.1980), have recognized that absent any anticompetitive purpose or design to create a monopoly, “a business may unilaterally choose those with whom it will conduct business,” as well as the terms and conditions of those business dealings. Hester v. Martindale-Hubbell, Inc., 659 F.2d 433, 436 (4th Cir. 1981) . Federal antitrust laws were enacted to prevent anticompetitive conduct, P. Areeda and D. Turner, III Antitrust Law, H 736(e) at 274 (1978); see Cong.Rec. 2457, 3151-53 (1890), rather than to enforce popular public utility notions of fair dealing. Areeda, supra, at 274. Even a recognized monopolist is not required to “deal non-discriminately with would-be purchasers, whether they are in competition or not.” Id. at 271. Only refusals to deal as a part of a conspiracy to restrain trade or to maintain a monopoly violate the antitrust laws. J. Von Kolinowski, Antitrust Laws and Trade Regulations, 2 § 6C.02[2] (1983).

Assuming arguendo that defendant Donnelley has a monopoly on yellow-page publishing in the area served by defendant C & P, the monopoly it enjoys is a natural incident of the monopoly status granted to C & P by Congress and the Federal Communications Commission, see 47 U.S.C. § 151 et seq., because of its public utility character. Best Advertising v. Illinois Bell Telephone Company and Reuben H. Donnelley Corporation, 229 F.Supp. 275 (S.D.Ill.1964), affd, 339 F.2d 1009 (7th Cir.1965). Although the advertising aspect of the business does not partake of this public utility character, the directories (of which the yellow page advertising is a part) are a normal and necessary part of C & P’s effective operation as a public utility. Best, 229 F.Supp. at 277.

The plaintiff alleges that both defendants are attempting to monopolize all classified advertising in the area served by C & P; however, he has not alleged that either defendant has done anything other than refuse to publish his advertisement exactly as he tendered it. Moreover, it is apparent from the face of the complaint that none of the parties is in competition with either of the other parties; thus, it is difficult, if not impossible, to envision any plausible scenario in which the defendants’ refusal would tend to stiffle competition or maintain any monopoly for the benefit of either defendant. See id. Conceding the monopoly status of both defendants does not advance the plaintiffs argument that he has stated a claim upon which relief can be granted. Unlike the plaintiff in Lorain Journal, supra, the plaintiff in the instant case does not allege, nor can he allege, that the defendants’ conduct restrained trade in their own market for their own benefit. Absent this anticompetitive animus, plaintiff’s claim must fail.

In Official Airline Guides, Inc. v. FTC, 630 F.2d 920, 928 (2d Cir.1980), the Second Circuit concurred with the contention of the FTC that Official Airline Guides had arbitrarily refused to publish commuter airline schedules to the detriment of competition among air carriers. Nonetheless, the court held that Official Airline Guides’ refusal did not violate the Federal Trade Commission Act. It determined that the cases relied upon by the FTC which required monopolists to deal with their competitors were inapplicable because Official Airline Guides did not compete with the airlines. Official Airline Guides, 630 F.2d at 925-26. The court also refused to apply the cases requiring monopolies to deal where their refusals furthered their own monopolies because Airline Guides’ refusal did nothing to further its monopoly over the printing of airline schedules. Id. Similarly, the defendants in the instant case are not in competition with the plaintiff nor does the complaint allege any facts that would tend to support the plaintiff’s conclusion that the defendants’ conduct facillitated or enhanced any monopoly either defendant may enjoy.

Furthermore, the plaintiff has failed to allege any concerted activity on the part of the defendants that would give rise to an actionable claim under the Sherman Act. Plaintiff’s reliance on Hester v. Martindale-Hubbell, Inc., 659 F.2d 433 (4th Cir. 1981), in support of his contention that he has a claim cognizable under the Sherman Act is misplaced. In Hester, the defendants’ complete refusal to publish any advertisement of the plaintiff was found to “[lie] well beyond the pale of even the most liberal extension of the concept of concerted activity.” Id. at 436.

Like Hester, this “is not a case in which those at a lower level of competition have conspired to force a supplier at a higher level of competition to impose some restraint. Nor is it a ease in which a supplier at a higher level of competition has coerced those at a lower level of competition to acquiesce in some anticompetitive endeav- or.” Id. (citations omitted). As the court observed in Dollar-A-Day Rent a Car Systems, Inc. v. Mountain States Telephone Company, 22 Ariz.App. 270, 526 P.2d 1068 (1974), regulations restricting price advertising in the yellow pages of telephone directories are not anticompetitive and therefore do not run afoul of federal antitrust laws. Instead, they are “in [full] accord with the public purpose expressed by Congress.” Id. 526 P.2d at 1073, citing Federal Trade Commission Act, 15 U.S.C. § 41 et seq. Thus, any restraint imposed by the advertising regulations of the defendants was not an “unreasonable restraint,” Best Advertising, 339 F.2d at 1011, citing Standard Oil Company of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1910), such as price fixing, elimination of competition or the creation of a monopoly, and, therefore, is not actionable under the federal antitrust laws. Furthermore, the plaintiff’s claim here is even weaker than the one rejected by the Fourth Circuit in Hester. The plaintiff in Hester was completely denied the right to advertise in a medium in which his competitors advertised. The pleadings in the instant ease clearly establish that the plaintiff received the same treatment as his competitors and was not prevented from advertising in the defendants’ directory.

These cases make it abundantly clear that the defendants are under no obligation to accept the plaintiff’s advertisement regardless of their monopoly position in the area served by C & P. Lorain Journal, 342 U.S. at 155, 72 S.Ct. at 187; Official Airline Guides, 630 F.2d at 928. Moreover, plaintiff’s complaint must fail because he has not alleged nor is he able to allege that he competes with either defendant, Official Airline Guides, 630 F.2d at 925-26; Best, 229 F.Supp. at 277, or that he has been discriminated against by the defendants in favor of his competitors.

III.

Additional grounds exist for dismissing the plaintiff’s claims for damages under Section 4 of the Clayton Act, 15 U.S.C. § 15. Plaintiff does not allege facts which would confer standing upon him under the federal antitrust laws. This Court has held that antitrust suits should be dismissed if the plaintiff cannot recover under any set of facts supporting the allegations in the complaint. Levey v. E. Stewart Mitchell, Inc., 585 F.Supp. 1030 (D.Md., 1984), appeal docketed, No. 84-1597 (4th Cir. June 7, 1984). The complaint is also devoid of any facts which support the allegation that the plaintiff has suffered the requisite antitrust injury.

The Supreme Court has made it increasingly clear that “Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation.” Hawaii v. Standard Oil Co., 405 U.S. 251, 263 n. 14, 92 S.Ct. 885, 891-892 n. 14, 31 L.Ed.2d 184 (1972). Even where an antitrust violation is established by the plaintiff or eonceeded by a defendant, it does not necessarily follow that any person harmed as a result of such conduct is a person injured by reason of the antitrust laws within the meaning of Section 4 of the Clayton Act. See Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 528, 103 S.Ct. 897, 903, 74 L.Ed.2d 723 (1983). Determining whether a person has standing under Section 4 requires an evaluation of the following factors:

(1) the nature of the alleged injury;
(2) whether the plaintiff is a consumer or competitor in the market where trade was allegedly restrained;
(3) the tenuous and speculative character of the casual relationship between the plaintiffs alleged harm and the alleged restraint;
(4) the potential for duplicative recovery or complex apportionment of damages; and
(5) the existence of more direct victims of the alleged conspiracy.

See Associated General Contractors, 459 U.S. at 542, 103 S.Ct. at 911.

A review of the plaintiffs allegations in light of these cases reveals that both counts of the complaint should be dismissed with regard to damages for lack of standing. Count I is easily disposed of because the plaintiff is not a competitor of either defendant and the defendants are not competitors of each other. Nor is the plaintiff a consumer in the market in which the alleged restrain of commerce occurred. In sum, the plaintiff does not allege any facts in Count I which would place him within the target area of the alleged restrain of trade, Associated General Contractors, 459 U.S. at 536 n. 33, 542-546, 103 S.Ct. at 907 n. 33, 911-913. Count I simply fails to disclose any facts which identify any justiciable interest the plaintiff has with regard to damages in the competition affected by the restrain. Plumbers and Steamfitters Local 598 v. Morris, 511 F.Supp. 1298, 1306 (D.Wash.1981).

The allegations in Count II also fail to establish plaintiff’s standing to pursue damages under Section 4 even though the plaintiff is a consumer in the advertising market (the market presumably affected by anticompetitive conduct in furtherance of defendants’ monopoly). He does not allege that he has been charged noncompetitive prices for his advertisements; therefore, the only market in which he conceivably could have suffered harm as a result of the defendants’ conduct is the legal services market, a market in which he is not a consumer and in which neither defendant competes. Hence, Count II also fails to allege any facts which place the plaintiff within the target area of the alleged violation of Section 2 of the Sherman Act. See Associated General Contractors, 459 U.S. at 536, n. 33, 542, 103 S.Ct. 907, n. 33, 911.

In addition, plaintiff’s alleged injury is too indirect and the damages too highly speculative for the plaintiff to recover under Section 4. Plaintiff has not established a “significant causal connection between the defendants’ violation and [his] injury,” Areeda, II Antitrust Laws ¶ 334a, at 163, or that his injury was “inextricably related to, and caused by, the alleged anticompetitive conduct.” Bichan v. Chemetron Corp., 681 F.2d 514 (7th Cir.1982), cert. denied, 460 U.S. 1016, 103 S.Ct. 1261, 75 L.Ed.2d 487 (1983). In Associated General Contractors, supra, the Court dismissed a union’s complaint against a multi-employer association which allegedly had coered third parties in to dealing with nonunion firms. The coercive acts were alleged to have adversely affected the trade of certain unionized firms to the detriment of the business activities of the union and its members. The Supreme Court denied the union relief pursuant to Section 4 “partly because [the injury was] indirect, and partly because the alleged effects on the union may have been produced by independent factors ...” thereby making the union’s damage claim too highly speculative. Associated General Contractors, 459 U.S. at 542, 103 S.Ct. at 911.

Here, as in Associated General Contractors, the indirectness of the alleged harm and the presence of independent factors are fatal to the plaintiff’s claim for damages. Compare Associated General Contractors, 459 U.S. at 542, 103 S.Ct. at 911 (presence of independent factors possibly accounting for harm made action for damages inappropriate) with Blue Shield of Virginia v. McCready, 457 U.S. 465, 475, n. 11, 102 S.Ct. 2540, 2547, n. 11, 73 L.Ed.2d 149 (1982) (plaintiff suffered directly from the alleged conspiracy and also could “ascertain [her damages] to the penny” thereby making antitrust damages appropriate). Customers ability to obtain low priced legal services from attorneys other than the plaintiff make it impossible for the plaintiff to establish the number of potential customers who would have turned to him for legal services (and the resulting fees he would have earned) were it not for the defendants’ refusal to publish the price information in his advertisement. In fact, it is entirely possible that the plaintiff may have done less business if price information for legal was published in the defendants’ yellow pages. Consequently, plaintiff’s claims for damages pursuant to Section 4 of the Clayton Act are too speculative and potentially duplicative for this case to proceed beyond the present motion to dismiss.

Finally, this Court need not decide whether the injury plaintiff alleges was proximately caused by defendants’ conduct for the purpose of determining whether there is standing to sue for injunctive relief under Section 16 of the Clayton Act, 15 U.S.C. § 26, because, as determined above, the conduct alleged in the complaint fails to support an actionable claim for violation of either Section 1 or 2 of the Sherman Act. Accordingly, plaintiff’s claim for injunctive relief must also fail.

After careful consideration of the pleadings in this case, defendants’ motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6), Fed.R.Civ.P., will be granted and plaintiff’s complaint, accordingly, dismissed.

      . Section 1 of the Sherman Act provides that "[ejvery contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States ... is declared to be illegal ...,” 15 U.S.C. § 1.
      Section 2 of the same act states that "[e]very person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States ... shall be deemed guilty of a misdeamor ...,” 15 U.S.C. § 2.

      . By "non-discriminately," the Court excludes refusals to deal for such obvious economic reasons as poor credit and the like. Areeda, at 271, note 4.

      . If anything, defendant’s refusals to accept certain kinds of advertising would tend to create market opportunities for competing advertising firms thereby decreasing their control over the market. Both the complaint and the defendants’ motion to dismiss note that C & P's reason for maintaining price restrictions is based on its concern that price quotations in it’s classified adds will change within the useful life of the directories. Complaint ¶ 12; Defendants' Memorandum in Support of Their Motion to Dismiss at 2, n. 2.

      . In Lorain Journal, the Lorain Journal Co. enjoyed a substantial monopoly over local and national news and advertising in its Community and refused to accept advertisements from anyone who advertised over the competing radio station. Lorain Journal, 342 U.S. at 148, 72 S.Ct. at 183.

      . Although Official Airline Guides, 630 F.2d at 920, involved Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, the authorities relied upon the parties and the court included Colgate, 250 U.S. at 300, 39 S.Ct. at 465 and Lorain Journal, 342 U.S. at 148, 72 S.Ct. at 183.

      . In Hester, the court in its dicta concluded that the "restricted access to advertising” was a restraint of trade but not actionable unless accompanied by “concerted activity." Hester, 659 F.2d at 436. However, in the present case, defendants have not "restricted access to advertising" either individually or in concert; they have merely established rules for advertising content and have applied them in an even-handed, nondiscriminatory way. Without such “restricted access to advertising” in furtherance of some anticompetitive purpose, Hester does not save the plaintiff’s claims from being dismissed for failure to state a claim upon which relief may be granted.

      . Section 4 of the Clayton Act provides that: Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor ... And shall recover thrice fold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee.

      . The requirement of "antitrust standing” is different and more restrictive than standing as a constitutional doctrine. While almost any harm will satisfy the standing requirement in the constitutional context, much more is required to acquire standing to pursue a damage action under Section 4 of the Clayton Act.

      . This frequently dispositive inquiry, see Associated General Contractors, 459 U.S. at 535, 103 S.Ct. at 907, has been referred to as the "target area" test. It has also been described as requiring a plaintiff to show that he is “within the area of the economy which is endangered by a breakdown of competitive conditions in a particular industry.” Id. 459 U.S. at 536, n. 33, 103 S.Ct. at 907 n. 33, citing Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 546-547 (5th Cir. 1980); Engine Specialties, Inc. v. Bombardier Ltd., 605 F.2d 1, 17-18 (1st Cir.1979); Calderone Enterprises Corp. v. United Artists Theater Circuit, Inc., 454 F.2d 1292-1295 (2d Cir.1971). The Second Circuit has also stated that for a plaintiff to be within the target area, he must be:
      a person against whom the conspiracy was aimed, such as a competitor of the persons sued. Accordingly, we have drawn a line excluding those who have suffered economic damage by virtue of their relationship with "targets” ...

        Calderone, 454 F.2d at 1294.
      Another Court of Appeals has asked whether the alleged injury is "arguably within the zone of interests protected by the antitrust laws.” Malamud v. Sinclair Oil, 521 F.2d 1142, 1151-52 (6th Cir.1975).

      . The Court also pointed out that any attempt to determine the amount of such speculative damages and apportion them among possible conflicting and duplicative claims would embroil the court in complex and potentially unmanageable proceedings. Such indirect causation and speculative harm has caused the dismissal of other actions under Section 4. See Eastern Auto Distributors v. Peugeot Motors of America, 573 F.Supp. 943 (E.D.Va.1983) (dismissing a defendant supplier’s counterclaim for lost sales based on the plaintiff distributor’s alleged tying arrangement which forced its dealers to sell both Peugeot and Renault automobiles).

      . This Court recognizes that the standing requirements for injunctive relief under Section 16 of the Clayton Act, 15 U.S.C. § 26 are broader than those of Section 4. State of Hawaii v. Standard Oil Co., 431 F.2d 1282, 1284-85 (9th Cir. 1970), aff’d, 405 U.S. 251, 261, 92 S.Ct. 885, 890, 31 L.Ed.2d 184 (1972). Broader standing under Section 16 is justified because of the difference between the remedies available under each section. In contrast to Section 4, Section 16 does not involve punative and potentially disasterous judgments for treble damages and attorney’s fees; neither is there the threat of duplicative recoveries. In re Multidistrict Vehicle Air Pollution, 481 F.2d 122, 130 (9th Cir.), cert. denied, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973).
      Thus, the target area approach is irrelevant to the question of standing under Section 16. Parks v. Watson, 716 F.2d 646, 662 (9th Cir. 1983), citing City of Rohnert Park v. Harris, 601 F.2d 1040, 1044 (9th Cir.1979), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980); In re Multidistrict Vehicle Air Pollution, 481 F.2d at 130-31. All that is required for standing under Section 16 is that the plaintiff show a threatened loss or injury cognizable in equity proximately resulting from the alleged antitrust violation. See Parks, 716 F.2d at 662.