Kimble v. DJ McDuffy, Inc., Civ. A. No. 73-1416.

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Citation445 F. Supp. 269
Decision Date24 January 1978
PartiesVersie KIMBLE, and all others similarly situated v. D. J. McDUFFY, INC., and Industrial Foundation of the South, and all of its subscribers.
Docket NumberCiv. A. No. 73-1416.

445 F. Supp. 269

Versie KIMBLE, and all others similarly situated
v.
D. J. McDUFFY, INC., and Industrial Foundation of the South, and all of its subscribers.

Civ. A. No. 73-1416.

United States District Court, E. D. Louisiana.

January 24, 1978.


445 F. Supp. 270
COPYRIGHT MATERIAL OMITTED
445 F. Supp. 271
Lawrence D. Wiedemann, Wiedemann & Fransen, New Orleans, La., for plaintiff

George J. Petrovich, Jr., Dixon & Petrovich, Fort Worth, Tex., Harry S. Redmon, Jr., and Rutledge C. Clement, Jr., Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for D. J. McDuffy, Inc. and Industrial Foundation of the South and all of its subscribers, defendants.

ALVIN B. RUBIN, Circuit Judge.*

The fallout following the fusion of new views with the interpretation of an ancient statute generates mutations and sometimes new forms of legal right. Here we are concerned with the extent of change wrought in the Federal Conspiracy to Obstruct Justice Act1 as a result of the reinterpretation of a related statute, commonly known as the Ku Klux Klan Act, in Griffin v. Breckenridge, 1971, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338. Each of these reconstruction era statutes now forms part of Section 1985, U.S.C., Title 42. The issue is whether the Obstruction of Justice Conspiracy Act, thus reinterpreted in the light of Griffin, grants a cause of action for an alleged conspiracy among private persons not to employ someone who has made a claim for personal injury.

I.

The interpretation of the statute determines the ruling on the defendants' motion for summary judgment. In the normal course, summary judgment will be granted only when there is no genuine dispute concerning any material fact.2 In the present case, the plaintiffs have failed to respond fully to the defendants' motion and supporting affidavits as required by Rule 56, Federal Rules of Civil Procedure. Nonetheless, rather than delay matters further in this suit instituted in 1973, now already almost five years old, we shall assume that the plaintiffs might adduce additional affidavits or depositions to support what they contend in briefs and unverified factual statements. The issue is whether, given the benefit of the assumption that these could be proved, and that all inferences favorable to the plaintiffs would be drawn from them, the defendants are nonetheless entitled to judgment as a matter of law. Adickes v. S. H. Kress & Co., 1970, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142; U. S. v. Diebold, Inc., 1962, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176; Tyler v. Vickery, 5th Cir. 1975, 517 F.2d 1089; Pitts v. Shell Oil Company, 5th Cir. 1972, 463 F.2d 331; Croley v. Matson Navigation Co., 5th Cir. 1970, 434 F.2d 73; Gross v. Southern Ry. Co., 5th Cir. 1969, 414 F.2d 292; also, see Wright and Miller, Federal Practice and Procedure, chap. 8, § 2727, p. 526. Acknowledging that the defendants, who seek summary judgment, will concede little of the following to be undisputed, and will argue that much of it is not true or not material, we begin with a resume of the facts that the plaintiffs contend they could prove.

In 1969, Mr. Kimble sustained an injury to his right shoulder while working for Noble Drilling Company. He filed a suit for damages in this court. It resulted in a jury verdict in his favor for $35,000. In December, 1972, he began work for McDuffy. The following April, McDuffy fired him because it learned of his prior suit against

445 F. Supp. 272
Noble. He then sought work from other companies, here named as co-defendants; they refused to consider him because he had sued McDuffy. He later learned that Industrial Foundation of the South (IFS), a corporation, engages in collecting data for the oil industry, including information concerning personal injury claims. IFS furnishes its members, all of them employers in the oil drilling industry, with the names of those persons who have either made a claim for personal injuries or filed a suit against any company in that industry for personal injuries connected with their employment. This suit is brought as a class action on behalf of all other persons who sought employment in the offshore industry and were denied it because their names had been placed into the IFS suit index system as a result of a personal injury claim or lawsuit, whether or not the claim was for a tort or for workmen's compensation, whether it was based on state or federal law, and whether or not it resulted in the filing of litigation. The suit seeks an injunction against the continuance of these practices. Class action status with respect to the damage claims has been denied; only Mr. Kimble now seeks damages

For the reasons stated, the version of the facts most favorable to the plaintiffs has been assumed. Defendants have, however, presented affidavits and other evidentiary matter tending to support a different view: they say that neither Mr. Kimble nor anyone else has ever been denied employment because of the assertion of a claim. Companies in the oil industry must assure themselves that their employees are in good physical condition. In their employment applications, these companies inquire whether the applicant has ever been injured. The question is frequently answered in the negative by applicants who have, in fact, been injured and are thus not suitable for employment. The IFS collects data concerning persons who have asserted claims for injuries during employment so that prospective employers may have accurate information by which to evaluate the physical condition of an applicant and the truthfulness of his application. But for present purposes, we postulate the plaintiffs' version.

II.

The plaintiffs' claims are founded entirely on the Federal Conspiracy to Obstruct Justice Act, § 1985(2),3 which creates four separate causes of action. They are more fully analyzed below. However, one of these is a conspiracy, defined in the statute as follows:

If two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws . . ..

Thus, the statute applies if (1) two or more persons conspire (2) for the purpose of impeding the due course of justice (3) with the intent to deny to any citizen the equal protection of the laws or (alternate 3) to injure him for lawfully enforcing the right of any person to the equal protection of the laws.

The plaintiffs' argument is that the conspiracy to deny them jobs because they had made claims for personal injuries was for the purpose of hindering, obstructing or defeating the due course of justice, and was entered into either:

445 F. Supp. 273

(a) for the purpose of depriving them of equal protection of the laws, or,

(b) to injure them for lawfully enforcing or attempting to enforce their right to present their claims, in general, and, particularly, their right to file suit in federal court.

The statute does not in terms apply to every act, however conspiratorial, directed at a person for the purpose of impeding or obstructing justice. It reaches only those acts done with a specific intent, the intent to deny equal protection or to cause injury to individuals who have lawfully enforced their rights to equal protection.

The plaintiffs do not invoke Section 1985(3), the Ku Klux Klan Act. However, the two sections are intimately related. Part of the Ku Klux Klan Act has recently been interpreted by the Supreme Court; as that interpretation must serve as the genesis for determining the interpretation of the remainder of Section 1985, we gain insight by examining Section 1985(3).

With deletion of those parts that are not involved here, the Ku Klux Klan Act reads:

If two or more persons . . . conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws . .; and in any case of conspiracy set forth in this section; if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages . . ..

Thus, that Act purports to deal with either a conspiracy to deprive others of equal protection of the laws or going in disguise for that purpose. Of course, the conspiracy, to be actionable, must be followed by an overt act.

The issue in Griffin was whether this statute created a cause of action for damages against private persons for their own conduct not associated with official state action. Holding that the statute reaches actions by private individuals, the court said that the sweep of the statute is "as broad as its language." 403 U.S. at 97, 91 S.Ct. at 1796. It protects equal privileges and immunities under the laws "from invasion by private persons." Ibid.

But this "does not, however, mean," it continued, "that it was intended to apply to all tortious, conspiratorial interferences with...

To continue reading

Request your trial
11 practice notes
  • Childree v. UAP/GA AG CHEM, INC., Civ. A. No. 1:94-CV-1312-FMH.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • 20 Junio 1995
    ...Ku Klux Klan Act), nor a class `having common characteristics of an inherent nature.'" Id. at 347 (quoting Kimble v. D.J. McDuffy, Inc., 445 F.Supp. 269, 273 (E.D.La.1978)). According to the Fifth Circuit, the logic of Griffin would be lost if the "class" of people allegedly victimized by t......
  • Allen v. Allied Plant Maintenance Company of Tennessee, No. 3-85-0031.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • 2 Mayo 1986
    ...must be supported by an allegation that the deterrence was accomplished by force, intimidation, or threat. Kimble v. D.J. McDuffy, Inc., 445 F.Supp. 269 (E.D.La.1978), aff'd in part & rev'd in part, 623 F.2d 1060 (5th Cir.1980), rev'd en banc, 648 F.2d 340 (5th Cir.), cert. denied, 454 U.S.......
  • Allison v. City of Live Oak, No. 76-309-Civ-J-C.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 12 Mayo 1978
    ...or perhaps a class-based discrimination must be alleged in order to state a claim under § 1985(3). See Kimble v. D. J. McDuffy, Inc., 445 F.Supp. 269 The Plaintiff in this case has made no allegation of racial bias. The court also notes that this case was not brought as a class action, nor ......
  • DesVergnes v. Seekonk Water Dist., Civ. A. No. 77-1251-C.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 14 Abril 1978
    ...Permian Basin, 456 F.2d 258, 259 (5th Cir. 1972); Kletschka v. Driver, 411 F.2d 436, 447 (2d Cir. 1969); Kimble v. D. J. McDuffy, Inc., 445 F.Supp. 269 (E.D.La.1978); Puentes v. Sullivan, 425 F.Supp. 249, 252 (W.D. Tex.1977); Smith v. Armstrong, 396 F.Supp. 753, 754 (N.D.Tex.), aff'd, 524 F......
  • Request a trial to view additional results
11 cases
  • Childree v. UAP/GA AG CHEM, INC., Civ. A. No. 1:94-CV-1312-FMH.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • 20 Junio 1995
    ...Ku Klux Klan Act), nor a class `having common characteristics of an inherent nature.'" Id. at 347 (quoting Kimble v. D.J. McDuffy, Inc., 445 F.Supp. 269, 273 (E.D.La.1978)). According to the Fifth Circuit, the logic of Griffin would be lost if the "class" of people allegedly victimized by t......
  • Allen v. Allied Plant Maintenance Company of Tennessee, No. 3-85-0031.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • 2 Mayo 1986
    ...must be supported by an allegation that the deterrence was accomplished by force, intimidation, or threat. Kimble v. D.J. McDuffy, Inc., 445 F.Supp. 269 (E.D.La.1978), aff'd in part & rev'd in part, 623 F.2d 1060 (5th Cir.1980), rev'd en banc, 648 F.2d 340 (5th Cir.), cert. denied, 454 U.S.......
  • Allison v. City of Live Oak, No. 76-309-Civ-J-C.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 12 Mayo 1978
    ...or perhaps a class-based discrimination must be alleged in order to state a claim under § 1985(3). See Kimble v. D. J. McDuffy, Inc., 445 F.Supp. 269 The Plaintiff in this case has made no allegation of racial bias. The court also notes that this case was not brought as a class action, nor ......
  • DesVergnes v. Seekonk Water Dist., Civ. A. No. 77-1251-C.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 14 Abril 1978
    ...Permian Basin, 456 F.2d 258, 259 (5th Cir. 1972); Kletschka v. Driver, 411 F.2d 436, 447 (2d Cir. 1969); Kimble v. D. J. McDuffy, Inc., 445 F.Supp. 269 (E.D.La.1978); Puentes v. Sullivan, 425 F.Supp. 249, 252 (W.D. Tex.1977); Smith v. Armstrong, 396 F.Supp. 753, 754 (N.D.Tex.), aff'd, 524 F......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT