Parish v. MD. & VA. MILK PRODUCERS ASS'N, INC.

• Decision Date: 15 September 1977
• Docket Number: Civ. No. B-75-1104.
• Citation: 437 F. Supp. 623
• Parties: Frank P. PARISH, Mrs. Theodore Fisher Parish v. MARYLAND AND VIRGINIA MILK PRODUCERS ASSOCIATION, INC., et al.
• Court: U.S. District Court — District of Maryland

437 F. Supp. 623

Frank P. PARISH, Mrs. Theodore Fisher Parish v. MARYLAND AND VIRGINIA MILK PRODUCERS ASSOCIATION, INC., et al.

Civ. No. B-75-1104.

United States District Court, D. Maryland.

September 15, 1977.

Frank P. Parish, pro se.

Edward L. Merrigan, Washington, D. C., for Maryland and Virginia Milk Producers Assn., Inc., Edward L. Merrigan, James E. Click, Directors of Maryland and Virginia Milk Producers Assn., Inc., Charles C. T. Stull, Merhl A. Adams, H. Lehman Toms, Upton F. Gladhill, Paul B. Harlan, Alton A. White, Harry W. T. Fouche, W. J. Hahn, Howard W. Clark, J. Homer Remsberg, Willis D. Remsberg, Lester W. Huff, Edward C. Norman, and Giles H. Miller.

M. Peter Moser, Jay I. Morstein, Baltimore, Md., for Robert M. Goldman and J. Robert Sherwood.

Harlan L. Weiss, Chevy Chase, Md., for William B. Hooper.

Jervis S. Finney, U. S. Atty., Thomas L. Crowe, Baltimore, Md., and David J. Anderson, Alexis Panagakos, Attys., Dept. of Justice, Washington, D. C., for Earl H. Butz.

Wilbur D. Preston, Jr., William B. Whiteford and Nevett Steele, Jr., Baltimore, Md., Thomas A. Henning, Towson, Md., for Herbert M. Brune and Harrison M. Robertson, Jr.

John J. O'Neill, Jr., Rockville, Md., for Charles Norman Shaffer.

Albert E. Brault, Rockville, Md., for Wayne Kendrick & Co.

Charles L. Richards, Silver Spring, Md., and Albert E. Brault, Rockville, Md., for Ernest C. Clifford.

Arthur F. Mathews, Stephen F. Black, John F. Rounsaville, Jr., Washington, D. C., and Andre W. Brewster, Edward S. Digges, Jr., Baltimore, Md., for Price Waterhouse & Co.

Edward H. Hatton, Arthur M. Sussman, Jenner & Block, Chicago, Ill., and David C. Daneker, Baltimore, Md., for United Dairy Industry Assn., and Mr. Glen Lake and American Dairy Assn., and Directors thereof from 1963 to present date.

Alan R. Sachs, Baltimore, Md., for Interstate Milk Producers Cooperative.

Wayne H. Hoecker, George P. Coughlin, Kansas City, Mo., and Robert B. Barnhouse, Baltimore, Md., for Mid-American Dairy Assn. Member of United Dairy Industry Assoc.

Wm. B. Somerville, Jon H. Grube, Smith, Somerville & Case, Baltimore, Md., for Thomas J. Michie.

MEMORANDUM AND ORDER

BLAIR, District Judge.

The court will not attempt to recount the history of this quixotic odyssey which threatens to become a latter day Jarndyce v. Jarndyce.¹ The earlier campaigns of this crusade are described fully in Parish v. Maryland & Va. Milk Producers Ass'n, 250 Md. 24, 242 A.2d 512 (1968) (Parish I), and Parish v. Maryland & Va. Milk Producers Ass'n, 261 Md. 618, 277 A.2d 19, cert. denied, 404 U.S. 940, 92 S.Ct. 28, 30 L.Ed.2d 253 (1971) (Parish II). The amended complaint² analytically consists of three distinct parts. The first encompasses a plethora of allegations about the legal relationship between Maryland and Virginia Milk Producers Association Association and its members. The second relates to the level of federal milk price supports and the third concerns the quality of the representation provided by the attorneys plaintiffs retained in the Parish I and Parish II litigation. In apparent recognition of the validity of defendants' motions to dismiss based on the lack of complete diversity between the parties, plaintiffs abandoned diversity as the asserted basis of jurisdiction in their amended complaint and rely instead on numerous federal statutes as well as the general equity jurisdiction of the court. All defendants have moved to dismiss for a variety of reasons.

The defendants have raised res judicata as a bar to this action. The heart of the res judicata doctrine is the public policy that all litigation must at sometime end, and once tried, issues which were tried or should have been tried are settled forever, as between the parties. Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 737 (1931); Beall v. Kearney & Trecker Corp., 350 F.Supp. 978, 981 (D.Md.1972). While every person has the fundamental right to be heard, there is no public policy in favor of allowing him an opportunity to raise the same issues in a second forum. See Eisel v. Columbia Packing Co., 181 F.Supp. 298, 301 (D.Mass. 1960).

A comparison of the first three causes of action in the amended complaint with the extensive and detailed Parish I and Parish II opinions shows that plaintiffs are attempting to relitigate claims that were presented and decided adversely to them in the state proceedings. This court sits neither as a second chance forum for losing litigants nor as a court of appeals reviewing decisions of state appellate courts. Whether the analytical base is res judicata, full faith and credit, or outright lack of jurisdiction, it is clear that the plaintiffs' first three causes of action must be dismissed. Rooker v. Fidelity Trust Co., 263 U.S. 413, 415, 44 S.Ct. 149, 68 L.Ed. 362 (1923); Tang v. Appellate Division of N. Y. Sup. Ct. First Dept., 487 F.2d 138, 141 (2d Cir. 1973), cert. denied, 416 U.S. 906, 94 S.Ct. 1611, 40 L.Ed.2d 111 (1974); Resolute Ins. Co. v. North Carolina, 397 F.2d 586, 589 (4th Cir.), cert. denied, 393 U.S. 978, 89 S.Ct. 446, 21 L.Ed.2d 439 (1968); 28 U.S.C. § 1738.

Res judicata, however, is not a bar to the fourth and fifth causes of action because they were neither litigated nor could they have been litigated in the state proceedings. Despite plaintiffs' assertion to the contrary, the only proper defendants to the fourth cause of action are the Federal Defendants.³ The remaining defendants' motions to dismiss the fourth cause of action will be granted. In paragraph 66 plaintiffs allege:

The decisions of the Secretary of Agriculture increasing the milk price support level have been arbitrary, capricious, unlawful and entirely lack the support of proper accounting reports of receipts and disbursements by milk cooperatives resulting from sale and disposition of milk and other property held in trust as above alleged.

Plaintiffs seek an injunction prohibiting the issuance of any milk price supports until the Maryland and Virginia Milk Producers Association issues annual certified operating statements. The Federal Defendants have moved do dismiss on the grounds that the plaintiffs lack standing to challenge the Secretary's milk support decisions. Plaintiffs respond by quoting from paragraph 4 of the amended complaint where they allege that this action is brought "on their own behalf as producers of milk consigned" to the Maryland and Virginia Milk Producers Association. Plaintiffs' membership in the Association, however, ceased in 1966 and they no longer have standing to bring this action as an association member. See Armstrong v. Frostie Co., 453 F.2d 914, 917 (4th Cir. 1971); Kenrich Corp. v. Miller, 377 F.2d 312, 314 (3d Cir. 1967).

Although plaintiffs contend in paragraph 67 that they are consumers of milk and taxpayers affected by the level of milk price supports, plaintiffs have not responded to the Federal Defendants' assertion that they lack standing in these capacities and indeed, they cannot. The court in Nader v. Butz, 398 F.Supp. 390 (D.D.C.1975), denied plaintiffs leave to file a second amended complaint similar to the amended complaint in this action. The court stated:

Plaintiffs would prosecute their second amended complaint "on their own behalf and on behalf of all consumers of milk and milk products, and of all taxpayers." But as either consumers of milk or taxpayers, they lack standing to bring this claim. Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); see United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974); Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

398 F.Supp. at 400. The Nader holding is fully applicable to this action and plaintiffs' fourth cause of action will be dismissed.⁴

Plaintiffs' fifth cause of action alleges that the defendant attorneys conspired to deprive the plaintiffs of their civil rights in violation of 42 U.S.C. § 1985 by failing to allege and prove that a trust relationship existed between the plaintiffs and the Association. It is apparent that this cause of action must be dismissed for several reasons.

Assuming that plaintiffs first discovered they had been wronged on May 5, 1971, the date Parish II was decided, plaintiffs waited over four years before instituting this action on August 11, 1975. The Maryland three year statute of limitations, Annotated Code of Maryland, Cts. & Jud. Proc. Art., § 5-101 (1974), which applies to actions brought pursuant to section 1985, bars plaintiffs' fifth cause of action. Even if the allegations were timely filed, they would nevertheless be dismissed because plaintiffs have failed to satisfy the standard enunciated in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). There the Court stated:

The language requiring intent to deprive of equal protection, or equal privileges and immunities, means there must be some racial, or perhaps otherwise class-based invidiously discriminatory animus behind the conspirators' action.

403 U.S. at 102, 91 S.Ct. at 1798 (emphasis original). A close reading of the complaint shows that it is totally devoid of any hint or suggestion of class-based discriminatory intent, e. g., that persons in a class different than plaintiffs' would have been accorded treatment different from that plaintiffs received. Hence no cause of action is stated. Stephens v. City of Plano, 375 F.Supp. 985, 987-88 (E.D.Tex.1974); Brosten v. Scheeler, 360 F.Supp. 608, 614 (N.D.Ill.1973), aff'd, 495 F.2d 1375 (7th Cir. 1974). Finally, plaintiffs' conclusory allegations, at best, concern only a private conspiracy which does not fall within the ambit of section 1985. Doski v. M. Goldseker Co., 539 F.2d 1326, 1334-35 (4th Cir. 1976). Defendants' motions to dismiss the fifth cause of action will be granted.

Several of the non-federal defendants have moved for the award of costs. Federal Rule of Civil Procedure 54(d)...