Cooper v. United States

• Decision Date: 03 November 1980
• Docket Number: No. 77-4173 CV C.,77-4173 CV C.
• Citation: 500 F. Supp. 191
• Parties: Kimberly Ann COOPER et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Missouri

500 F. Supp. 191

Kimberly Ann COOPER et al., Plaintiffs, v. UNITED STATES of America, Defendant.

No. 77-4173 CV C.

United States District Court, W. D. Missouri, C. D.

November 3, 1980.

Ronald R. McMillin, Cullen Coil, Jefferson City, Mo., Duke W. Ponick, Jr., Kansas City, Mo., for plaintiffs.

Ronald S. Reed, U. S. Atty., Judith M. Strong, Asst. U. S. Atty., Kansas City, Mo., Thomas W. Snook, Torts Branch, U. S. Dept. of Justice, Washington, D.C., Alice Daniel, Asst. Atty. Gen., Washington, D.C., for defendant.

ORDER

ELMO B. HUNTER, District Judge.

This cause now pends upon defendant's motion to reconsider this Court's Order of May 6, 1980, in light of the recent ruling of the Eighth Circuit Court of Appeals in Livingston v. United States, 627 F.2d 165 (1980).

Plaintiffs apparently concede that the decision in Livingston renders the Lake of the Ozarks beyond the admiralty jurisdiction of this Court. See, plaintiffs' Memorandum Re Motion of the United States to Reconsider its Motion to Dismiss, filed September 4, 1980; and Reply to Supplemental Memorandum Re Motion of the United States to Reconsider its Motion to Dismiss, filed October 4, 1980. Instead, plaintiffs argue that to dismiss the United States on the basis of a retroactive application of the rule in Livingston would be unfair and inequitable. See, Rudolph v. Wagner Electric Corp., 586 F.2d 90 (8th Cir. 1978); and Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971).

The analysis established in Chevron involves consideration of essentially three factors.

"In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed .... Second, it has been stressed that `we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.' citing Linkletter v. Walker, 381 U.S. 618 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Finally, we have weighed the inequity imposed by retroactive application, for `where a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the injustice or hardship by a holding of nonretroactivity.' citing Cipriano v. City of Houma, 395 U.S. 701 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969). Id. at 106-07, 92 S.Ct. at 355.

Plaintiffs argue that the decision in Loc-Wood Boat & Motors v. Rockwell, 245 F.2d 306 (8th Cir. 1957) provided clear earlier precedent that the Lake of the Ozarks was within the admiralty jurisdiction of the federal courts. While this Court does not disagree that Loc-Wood Boat seemingly held the Lake of the Ozarks to be within admiralty jurisdiction, developments in the law since 1957 clearly foreshadowed the recent ruling of the Eighth Circuit in Livingston.^*

In Adams v. Montana Power Co., 528 F.2d 437 (9th Cir. 1975) and Chapman v. United States, 575 F.2d 147 (7th Cir. 1976), the Ninth and Seventh Circuits recognized the jurisdictional analysis more clearly enunciated recently by the Eighth Circuit in Livingston. As well, the Eighth Circuit noted that Loc-Wood Boat and George v. Beavark, Inc., 402 F.2d 977 (8th Cir. 1968) had created a misimpression among courts and commentators over the true import of these holdings. Livingston v. United States, supra, at p. 168 n. 4. See, Marine Office of Am. v. Manion, 241 F.Supp. 621, 622 (D.Mass.1965); G. Gilmore and C. Black, The Law of Admiralty 33 n. 103 (2d ed. 1975). In sum, the Eighth Circuit's opinion in Livingston, which establishes a contemporary navigability in fact analysis for determining federal admiralty jurisdiction, was a necessary expression of the appropriate jurisdictional analysis for cases of this type. Whatever the precise meaning of earlier Eighth Circuit precedents, the state of the law in this area clearly foreshadowed the ruling in Livingston.

Further, this Court is persuaded that retroactive application of the rule in Livingston^** would further important policy objectives. The basis for admiralty jurisdiction is founded upon the need for uniform policies in...