Enquist v. Quaker Oats Company

• Decision Date: 06 May 1971
• Docket Number: Civ. No. 71-0-144.
• Citation: 327 F. Supp. 347
• Parties: Ronald ENQUIST, et al., Plaintiffs, v. The QUAKER OATS COMPANY, a corporation, and Emil J. Petranek, Jr., Defendants.
• Court: U.S. District Court — District of Nebraska

327 F. Supp. 347

Ronald ENQUIST, et al., Plaintiffs, v. The QUAKER OATS COMPANY, a corporation, and Emil J. Petranek, Jr., Defendants.

Civ. No. 71-0-144.

United States District Court, D. Nebraska.

May 6, 1971.

Charles A. Nanfito, of Nanfito & Nanfito, Omaha, Neb., for plaintiffs.

Leo Eisenstatt, of Eisenstatt, Higgins, Kinnamon & Green, Omaha, Neb., for defendants.

MEMORANDUM AND ORDER

DENNEY, District Judge.

This matter comes before the Court on the motion of defendant to dismiss the complaint Filing 4. Oral arguments have been heard and briefs have been submitted on behalf of both parties.

In their complaint, plaintiffs allege that defendant has discharged and continues to discharge refuse into the Missouri River and that such discharge violates the provisions of two statutes, namely, Section 13 of the Rivers and Harbors Act, 1899, commonly known as the Refuse Act 30 Stat. 1152, 33 U.S. C.A. § 407, and the Water Quality Improvement Act of 1970 84 Stat. 91, 33 U.S.C.A. § 1151, et seq..

The plaintiffs classify their action as "Qui Tam * * * a civil action" and seek $1,500,000 in penalties and that defendants cease and desist from further polluting. The monetary relief sought is based on that part of 33 U.S.C. § 411 which provides for the payment of one-half of the fine assessed a person convicted under § 407 "to be paid to the person or persons giving information which shall lead to conviction."

Historically, qui tam actions have been based on a particular statute giving the common informer a right to share in the penalty. Statutes providing for a share in the penalty may be classified as basically one of two types: (a) the statute gives the informer a right to share in the penalty and that right goes to the person who shall first give information and prosecute, or (b) the statute gives the informer a right to share in the penalty, but is silent as to whether the informer may prosecute in his own name and in separate section directs that some governmental official or agency is charged with the enforcement and prosecution of the statute. Qui tam actions have been allowed under statutes of the former type but not under statutes of the latter. The Refuse Act is of the latter variety.

Plaintiff's strongest authority for maintenance of this action is found in the dictum of Justice Black in U. S. ex rel. Marcus v. Hess, 317 U.S. 537, 63 S. Ct. 379, 87 L.Ed. 443 1943, where he stated that:

Statutes providing for a reward to informers which do not specifically either authorize or forbid the informer to institute the action are construed to authorize him to sue.

This dictum has been criticized recently in Bass Angler Sportsman's Society of America v. U. S. Plywood-Champion Papers Inc., 324 F.Supp. 302 S.D.Tex., 1971. The court in that case, stated that Justice Black's dictum appears to state the law too broadly and particularly so whenever the statute's language by necessary implication precludes such a conclusion. An early case similar to this action is Drew v. Hilliker, 56 Vt. 641 1884, wherein the court stated: "It is settled law that an informer can in no case sue in his own name to recover a forfeiture given in part to him, unless the right to sue is accorded by the statute raising the forfeiture." Further authority for this proposition is found in Williams v. Wells Fargo & Co. Express, 177 F. 352 8th Cir. 1910, where the court examined an analogous postal law and said that:

The question is one of procedure in the federal courts * * * and as it the postal law in express terms commands that all such suits shall be brought "in the name of the United States" * * * and the lawmaking power in its wisdom, deemed wise that the

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