author: EDWARD C. REED, Jr., District Judge.

text:
    Johnnie D. STOLZ, Dean L. Stolz, James Barth, and Gus Flangas, Plaintiffs, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION NO. 971, Defendants.
    No. CV-R-84-11-ECR.
    United States District Court, D. Nevada.
    Oct. 15, 1985.

      Chan G. Griswold, Reno, Nev., for plaintiffs.
    Michael B. Roger, Van Bourge, Allen, Weinberg & Roger & Rosenfeld, San Francisco, Cal., and Nathan Jenkins, Reno, Nev., for defendants.
   ORDER

EDWARD C. REED, Jr., District Judge.

In this case, plaintiff has sued on behalf of himself and all others similarly situated. According to the complaint, defendants have allegedly violated § 101(a)(3) of the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 411(a)(3). Defendants’ alleged transgressions consist in improperly combining the proposition of a wage increase with that of a “dues checkoff” in one question at the December, 1982, union election, thereby denying the union membership the right to vote on each issue separately. In addition, plaintiff contends that defendants’ allowing retired members to vote on the proposition was improper, in that retirees have no right to vote in union elections. As the vote on the two propositions passed by a margin of almost 200, the union began to collect the dues check-off on January 1,1983, and has continued to do so until the present. In that plaintiff alleges that the Local collected these dues illegally, he demands full restitution and punitive damages of $10,000. Additionally, plaintiff seeks a permanent injunction restraining defendant from collecting or imposing further dues.

Plaintiff has moved this Court to certify as a class all Local members from whom dues were collected. Further, plaintiff has moved for summary judgment on the issue of the defendant’s liability. Defendant opposes the class certification, and argues that an evidentiary hearing is necessary to test the adequacy of plaintiff’s representation of the class. Additionally, defendant opposes plaintiff’s motion for summary judgment, and argues that this action is barred by the applicable statute of limitation and the doctrine of laches. Because the statute of limitations and laches could dispose of this case immediately, the Court will consider these questions first.

STATUTE OF LIMITATIONS

Because the LMRDA, as with many federal labor statutes, contains no statute of limitations itself, courts have had to borrow an analogous state or federal statute in order to fill that gap. The Ninth Circuit has held that the applicable statute for the LMRDA is the state statute for the alleged violation for statutorily created rights. See Trotter v. International Longshoremen’s and Warehousemen’s Union, 704 F.2d 1141 at 1143, n. 2 (9th Cir.1983); Copitas v. Retail Clerks International Association, 618 F.2d 1370, 1372 (9th Cir.1980). Because most of the state statutes regarding the violation of statutorily created rights are three years in length, the statute for the LMRDA in the Ninth Circuit has also generally been three years. Id.

In June of 1983, however, the United States Supreme Court decided DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). In that case, the Court decided that the applicable statute for actions arising under the Labor Management Relations Act, 29 U.S.C. § 141 et seq., (LMRA) would no longer be the most closely analogous state statute, but would instead be the six-month statute found in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). Id. at 169-172, 103 S.Ct. at 2293-2294. Although the LMRDA is distinct from the LMRA, several circuits have applied the six-month limitation of DelCostello to causes of action under the LMRDA. See Vallone v. Local Union No. 705, International Brotherhood of Teamsters, 755 F.2d 520 (7th Cir.1984); Local Union No. 1397, United Steelworkers of America, v. United Steelworkers of America, 748 F.2d 180 (3rd Cir.1984). See also Barnett v. United Air Lines, 738 F.2d 358 (10th Cir.1984) (DelCostello limitation applies to actions under the Railway Labor Act, 45 U.S.C. § 151).

The Ninth Circuit has not yet indicated whether it will apply DelCostello to cases arising under the LMRDA. In fact, in the only case discussing the application of DelCostello outside the LMRA, the Circuit has specifically reserved the question of whether it will apply the case in any context broader than that specifically indicated by the court itself in DelCostello. Klemens v. Air Line Pilots Association, 736 F.2d 491, 499 n. 7 (9th Cir.1984) cert. denied, — U.S. —, 105 S.Ct. 435, 83 L.Ed.2d 362 (1984). When the Circuit has applied the DelCostello rule in LMRA cases, moreover, it has routinely refused to give it retroactive application. See Barina v. Gulf Trading and Transportation Co., 726 F.2d 560 (9th Cir.1984); McNaughton v. Dillingham Corp., 722 F.2d 1459 (9th Cir.1984) cert. denied, — U.S. —, 105 S.Ct. 291, 83 L.Ed.2d 227 (1984); Edwards v. Teamsters Local Union No. 36, 719 F.2d 1036 (9th Cir.1983) cert. denied, 465 U.S. 1102, 104 S.Ct. 1599, 80 L.Ed.2d 130 (1984); Scoggins v. Boeing Co., Inc., 742 F.2d 1225 (9th Cir.1984) (suggesting that DelCostello should be limited to suits against employers, and has no application to suits against unions). This Court need not consider the question of whether the DelCostello limitation must apply in LMRDA actions, therefore, for even if it did, the Court would not give it retroactive application in this particular case.

In Edwards v. Teamsters Local Union No. 36, supra, the Circuit considered the propriety of applying DelCostello to an LMRA action retroactively. In declining retroactive application of the case, the court set forth three factors to consider:

First, the decision to be applied non-retroactively 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.” ... Finally, we have weighed the inequity imposed by retroactive application, for “[w]here 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.”

Id. at 1040 (citing Chevron Oil Co. v. Huson, 404 U.S. 97 at 106-07, 92 S.Ct. 349 at 355, 30 L.Ed.2d 296 (1971)).

In the present case, it is clear that the first Edwards factor has been satisfied. If DelCostello does apply to LMRDA actions, it will effectively overrule the previous statute of limitations for such actions in the Ninth Circuit. See Trotter, supra, and Copitas, supra. The previous statute constituted a clear precedent on which plaintiff could have justifiably relied. In addition, although a concurrence in a Supreme Court case on a tangentially related subject touched on the holding in DelCostello, see United Parcel Service v. Mitchell, 451 U.S. 56, 65-71, 101 S.Ct. 1559, 1565-1568, 67 L.Ed.2d 732 (1981) (Stewart, J., concurring), it could not be said to have “clearly foreshadowed” the result in the later case. Edwards, supra, at 1040.

As regards the second criterion, it seems that the nonretrospective application of the DelCostello rule in this case will not retard the rule’s future operation. The court noted in DelCostello that the new rule’s purpose was to establish a uniform system which would accord employees a satisfactory opportunity to vindicate their rights under the LMRA. DelCostello, supra, 462 U.S. at 171-72, 103 S.Ct. at 2294. With this purpose in mind, it seems unlikely that nonretroactive application of the rule in this circumstance will retard the Court’s plan, in that DelCostello creates a procedural limitation, rather than substantive rights which the Court would have to acknowledge even retroactively.

Finally, the balance of equities required by the third prong of the Edwards test tips clearly in favor of the plaintiff in this case. As the LMRDA requires, plaintiff pursued internal union remedies for eight months until August of 1983. Plaintiff filed suit in January of 1984, exactly one year after the allegedly illegal election took place. Hence, plaintiff was well within the three-year requirement of the previous statute of limitation for LMRDA action. Moreover, although this would not be in strict compliance with DelCostello if it were to be applied, by filing one year after the action arose plaintiff has not “slept on his rights.” Instead of waiting until the end of the then existing statute of limitations period, the plaintiff managed to file this action before even one third of it had managed to expire. In this sense, this Court must find that the equities favor the plaintiff in that he has managed to prosecute this action in a timely manner. The DelCostello rule, therefore, will not be applied against him retroactively.

In addition, for the same reasons stated above, the Court finds untenable defendants’ contention that the doctrine of laches also bars the present cause of action. Laches is an equitable doctrine which prevents the prosecution of a cause of action in which the plaintiff has clearly disregarded the time element. Normally, the doctrine will not apply where the plaintiff has filed his action within the period specified for the analoguous action at law, and where the defendant has not been prejudiced by the delay in filing the suit. Shouse v. Pierce County, 559 F.2d 1142 at 1147 (9th Cir.1977).

In the present case, the plaintiff has filed his action within the Ninth Circuit’s presently applicable statute of limitations for LMRDA actions. Even if the DelCostello limitation ultimately supplants the earlier statute, moreover, plaintiff has not necessarily filed this action too late. As one court has noted, a plaintiff in an action under the LMRDA must exhaust reasonable internal union procedures for a four-month period after the cause of action accrues. Connor v. Highway Truck Drivers and Helpers, Local 107, 378 F.Supp. 1069 (E.D.Pa.1974) (citing 29 U.S.C. § 411(a)(4)). Because of this four-month obligation, the plaintiff is necessarily delayed in bringing an LMRDA action in a court of law. With this in mind, there is less than an eight-month lapse of time between the present plaintiff’s exhaustion of union remedies and the filing of this suit. Such a delay cannot be considered unduly. Connor, supra, at 1072.

Additionally, the defendants have not shown that they have been prejudiced by the delay in the filing of this suit. The fact that plaintiffs action was not filed until eight months after the exhaustion of union .remedies does increase the potential amount of dues which may ultimately have to be returned by the defendant. This, however, cannot be said to be prejudicial, in that if plaintiff ultimately proves his case, these dues will have been illegally collected in the first place. Thus, finding that defendants have been unduly prejudiced in the present case by the delay in the filing of the complaint would allow the defendants to profit by their potentially illegal Stt. The Court therefore finds that the doctrine of laches is inapplicable in the present case.

RESTITUTION

In addition, the Court must disregard defendants’ contention that restitution of illegally collected dues is an inappropriate remedy under the LMRDA. Although, as defendants indicate, federal courts do not have carte blanche to interfere in internal union matters under the LMRDA, Wirtz v. Local 153, Glass Bottle Blowers Ass’n, 389 U.S. 463, 471 n. 10, 88 S.Ct. 643, 648 n. 10, 19 L.Ed.2d 706 (1968), neither do unions have the power to keep illegally collected dues in their coffers. In Teas v. Local 413, International Brotherhood of Teamsters, 504 F.Supp. 12 (S.D. Ohio 1978), for example, the court found that restitution of illegally collected dues was^ proper under the LMRDA. Even though the union had lawfully expended the dues for the benefit of the membership, the court found that the union could not avoid the fact that the dues had been collected illegally. “One of the purposes of the [LMRDA]”, found the court, “was to insure to rank and file union members that union affairs would be conducted pursuant to fair and democratic principles and not by the arbitrary acts of union leaders.” Id. at 17 (citing National Labor Relations Board v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 194-95, 87 S.Ct. 2001, 2013-14, 18 L.Ed.2d 1123 (1967)). To permit the union to retain the dues simply because it had spent them for the member’s benefit would frustrate the purposes of the LMRDA, the court concluded, and it therefore ordered restitution of all dues collected in violation of the Act. See Gravenstein v. Campion, 96 F.R.D. 137 (D.Alaska 1982) (restitution is a proper remedy under the LMRDA); Peck v. Associated Food Distributors of New England, 237 F.Supp. 113 (D.Mass.1965) (dues wrongfully collected are repayable under the Act).

In the current case, it is also clear that restitution is a proper remedy for the alleged violations of the Act. Despite defendants’ protestations, the court can order repayment of illegally collected dues, even where the dues were ultimately lawfully expended for the members’ benefit. Teas, supra. Additionally, restitution may well place the union in a precarious financial position, but it must be remembered that restitution will only be ordered where the dues have been illegally collected in the first place. Id. Allowing the union to keep illegally collected dues, even where hardship is imposed, would frustrate the purposes of the Act. Id. Moreover, the Court is not now ordering restitution, and it may later appear that some other sort of injunctive relief, such as ordering an election that does comport with the requirements of the Act, will be required before restitution can be ordered. Therefore, the Court has no difficulty in dismissing defendants’ motion to disqualify restitution as relief in this case.

MOTION FOR EVIDENTIARY HEARING

The Court finds that an evidentia-ry hearing or further discovery on various class certification issues, which the defendants have requested, are unnecessary, and finds that the prerequisites to the maintenance of a class action have been satisfied. The Court need resort to an evidentiary hearing or allow discovery in the certification stage of a class action only where the record itself is insufficient to make the determination. As the Ninth Circuit has noted, all that is required of the district court when certifying a class is that that it analyze the allegations of the complaint and other materials in the record, and that it consider the nature and range of proof necessary to establish those allegations. Blackie v. Barrack, 524 F.2d 891 at 900-01 (9th Cir.1975) cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976); see also, United National Records, Inc. v. MCA, Inc., 99 F.R.D. 178, 180 (N.D.Ill.1983) (court is limited to a liberal inquiry into plaintiffs, claims in determining whether Rule 23 has been met) (citing, Blackie v. Barrack, supra; Eggleston v. Chicago Journeymen Plumber’s Local Union No. 130, 657 F.2d 890, 895 (7th Cir.1981) cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982)); In re Sugar Industry Antitrust Litigation, 73 F.R.D. 322, 358 (E.D.Pa.1976) (all that is required is that the court have sufficient material before it to determine whether Rule 23 has been satisfied) (citing, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)). Although evidentiary hearings have often been used before the certification determination, they are by no means required, and are usually employed to assist the plaintiff in demonstrating the existence of the class. Social Services Union, Local 535 v. County of Santa Clara, 609 F.2d 944 (9th Cir.1979); Mead v. Parker, 464 F.2d 1108, 1112 (9th Cir.1972). Additionally, it should be noted that the certification of the class is not an immutable decision. If it later appears that plaintiff fails to meet any of the requirements of Rule 23, the certification may be withdrawn. Social Services, at 948. Having reviewed the entire record, this Court finds it sufficient to make the certification determination without further delay.

CLASS CERTIFICATION

In opposing the motion to certify defendants initially claim that it has not been made as soon as practicable, as required by Rule 23(c)(1), and that certification must therefore be denied. This contention is without merit. Plaintiffs motion to certify was filed one year after the filing of the complaint, and several courts have noted that a year’s time between filing of complaint and the motion to certify will not prevent certification. See, Souza v. Scalone, 64 F.R.D. 654, at 656 (N.D.Cal.1974) vacated on other grounds, 563 F.2d 385 (1975). In addition, it appears that a delay in filing the motion alone will not be cause for denial of certification. There must also be a showing that the delay has somehow prejudiced the party opposing the motion. See Chambers v. McLean Trucking Co., Inc., 550 F.Supp. 1335 at 1345 (M.D.N.C. 1981); Muth v. Dechert, Price & Rhoads, 70 F.R.D. 602, 606 (E.D.Pa.1976). This the plaintiff has failed to do, which compels the Court to find that the motion to certify has been filed in a timely fashion.

A. Applicability of Fed.R.Civ.P. 23 and 23.2.

In suits involving unincorporated associations, the standards of Fed.R.Civ.P. 23.2 apply. This rule provides that:

[a]n action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties may be maintained only if it appears that the representative parties will fairly and adequately protect the interests of the association and its members. In the conduct of the action the court may make appropriate orders corresponding with those described in Rule 23(d), and the procedure for dismissal or compromise of the action shall correspond with that provided in Rule 23(e).

■There is substantial dispute in the cases as to whether this rule supplants entirely the normal class action provisions of Rule 23 as far as unincorporated associations are con- * cerned. Some courts have argued that a class action by such an association need # satisfy only the provisions of Rule 23.2. See Gay Lib v. University of Missouri, 416 F.Supp. 1350 at 1360 (W.D.Mo.1976), rev’d •on other grounds, 558 F.2d 848 (8th Cir. 1977), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 789 (1978); Management Television Systems, Inc. v. National Football League, 52 F.R.D. 162, 164 (E.D.Pa. 1971). These courts argue, in essence, that, the language of Rule 23.2 and the fact that it refers to some, but not all of Rule 23’s •provisions indicate that 23.2 was intended' to govern completely class actions by unincorporated associations.

Other courts, however, contend that Rule 23’s requirements of numerosity, commonality, typicality, and adequacy of represen-’ tation apply to class actions of unincorporated associations, in spite of Rule 23.2._ See Gravenstein v. Campion, 96 F.R.D. 137, 140 (D.Alaska 1982); Sembach v. McMahon College, Inc., 86 F.R.D. 188, 192. (D.C.Tex.1980); see also, Note, Capacity and Class Actions Under Federal Rule 23.2, 61 B.U.L.Rev. 713, 730-34 (1981). Es-‘ sentially, these courts argue persuasively that Rule 23.2 was enacted to grant unin-. corporated associations “entity status,” thereby allowing them to sue and be sued as á body. At common law the unincorporated association was simply the sum of its members, and not a legal entity such as a person or a corporation. In order for the association to sue or be sued, all of its members had to be named parties to the . action. Gravenstein, supra. The common law rule had to be abrogated, therefore, to give the unincorporated association status as a jural person. Id.

This is, therefore, the essential purpose of Rule 23.2. Advisory Committee’s Note, Fed.R.Civ.P. 23.2. In this sense, Rule 23.2 supplements Rule 17, by allowing unincorporated associations the same legal status as a person or corporation. Rule 23 therefore remains unsullied by Rule 23.2, and a labor union, or those representing the union’s membership must comply with its provisions when bringing a class action suit.

B. Rule 23 Factors

In order for a lawsuit to proceed as a class action, the pláintiff must first demonstrate that he has met the numerosity, commonality, typicality, and representative requirements of Fed.R.Civ.P. 23(a). Green v. Occidental Petroleum Corp., 541 F.2d 1335 (9th Cir.1976). Although these factors must be satisfied, they are not necessarily exhaustive of the class action prerequisites. Kamm v. California City Development Co., 509 F.2d 205 (9th Cir.1975). The court may also examine whether a class action is a superior method of trying the issues, in light of the entire judicial system, potential class members, the present plaintiffs, attorneys for the litigants, the public at large, and of the defendant. Id. at 212. Once the prerequisites for the class action have been satisfied, the case must fit into one of the three subdivisions of Rule 23(b) in order to proceed. Green, supra.

1. Class definition.

Although not specifically mentioned in Rule 23(a), a class must be sufficiently definite in order to warrant certification. As one court has stated, “[t]he requirement that there be a class will not be deemed satisfied unless the description of it is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.” Aiken v. Obledo, 442 F.Supp. 628, 658 (E.D.Cal.1977); see Rutherford v. United States, 429 F.Supp. 506 (W.D.Okl.1977), rev’d on other grounds, 442 U.S. 544, 99 S.Ct. 2470, 61 L.Ed.2d 68 (1978).

The plaintiff in the present action has not supplied the Court with a specific definition, but the Court may fashion one of its own when necessary. Metcalf v. Edelman, 64 F.R.D. 407 (N.D.111.1974). In this case, the class consists of all union members who have allegedly suffered the denial of their rights by the December, 1982, election. This class is therefore comprised of all members of Local 971 eligible to vote at the time the alleged violation occurred. Additionally, the class should include all 971 members which have worked or are working under the present contract between the union and the Associated General Contractors, in that members who have joined the union after the election are still subject to the allegedly illegal dues checkoff.

2. Numerosity.

The numerosity requirement of Rule 23(a)(1) merely requires that the class be large enough as to make joinder impracticable. Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-13 (9th Cir.1964). Under the court’s definition and according to the record, the potential class members would number close to 700. Such a large class of plaintiffs clearly makes joinder of all parties into a single action impracticable. Harris, supra; see Gonzales v. Sheely, 96 F.Supp. 1004 (D.Ariz.1951) (class of 300 sufficient). Thus, the numerosity requirement has been satisfied.

3. Commonality.

Rule 23(a)(2) requires that questions of law or fact must be common to all members of the class in order for the class to be certified. This provision of the rule has not been interpreted to mean that all claims of the class members must be identical, but merely that a common significant thread of law or fact run throughout all of the claims. As the Ninth Circuit has noted, the Rule “does not require that all the members of the class be identically situated, if there are substantial questions of law or fact common to all.” Harris, supra, at 914.

In the present case, a common question of fact and law exists in the controversy surrounding the propriety of the December, 1982, elections. If a violation of the LMRDA is proved, the class members will have suffered identical injury, in that they all will have been denied their voting rights, and they will have all been forced to pay illegally approved dues. In this sense, it is clear that common questions of fact and law predominate in this action, and that class action is an appropriate method for resolving them. See Rota v. Brotherhood of Railway, Airline and Steamship Clerks, 64 F.R.D. 699 (N.D.Ill.1974) rev’d on other grounds 489 F.2d 998 (7th Cir.1974) (class actions can be maintained under LMRDA, in that common questions of fact and law usually predominate).

4. Typicality.

In order to gain class certification, the class representative himself must demonstrate that his claims are typical of those of the entire class. In Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496 (9th Cir.1980), the court noted that the named representatives must be injured in the same manner as the rest of the class. Id. at 505 (citing Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975)). In the present case, it is clear that the class representative, Stolz, has allegedly been injured in the identical manner as the rest of the class, in that the elections which may have violated class rights have had an identical effect on him. Thus, his claims are typical of the remainder of the class. See Rota, supra, at 706.

5. Adequate Representation.

Rule 23(a)(4) indicates that the named representative must represent the interests of the unnamed class members adequately. This section of the Rule reaches constitutional dimensions, in that the outcome of the class action is binding on all class members. Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 117, 85 L.Ed. 22 (1940); Scott v. University of Delaware, 601 F.2d 76, at 85 (3rd Cir.1979) cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 189 (1979). Our circuit has held that adequate representation depends on quality of the representative’s counsel, an absence of class antagonism, a sharing of interests between the representative and the absent class members, and the unlikelihood that the suit is collusive. In re Northern District of California, Dalkon Shield IUD Products Liability Litigation, 693 F.2d 847 (9th Cir.1982) cert. denied, 459 U.S. 1171, 103 S.Cf. 817, 74 L.Ed.2d 1015 (1983).

In the present case, defendant alleges that the plaintiffs interests in the ‘outcome of the litigation are antagonistic to at least part of the class, in that not all ,of the class is opposed to the dues increases. Defendants’ argument carries some • weight to it, for not all of the class could ■have been opposed to the dues increase or it certainly would not have passed at the' December, 1982, election. Nonetheless, the possible antagonism alleged by the defendant is not sufficient to prevent plaintiff •from being named class representative, for several reasons.

Initially, the gist of plaintiffs complaint is not only that he is opposed to the dues check-off, but that the manner in which the check-off was approved — namely, by combining that question with a pay increase proposal — was improper, and violated his statutory rights. Therefore, even if a class member approves highly of the dues increase, he may still strongly disapprove of the fact that it was brought about in an illegal manner. In that all union members haVe a co-extensive interest in seeing the provisions of the LMRDA enforced, plaintiffs attempt to enforce the provisions of this act can hardly be antagonistic to the interests of the rest of the class. Gates v. Dalton, 67 F.R.D. 621, 630 (E.D.N.Y.1975).

Additionally, it is possible that the members which voted for the combined wage increase and dues check-off would have voted against the dues check-off if it had beeh proposed alone. The combination of the wage increase may have been enough sweet to overpower the bitter of the dues increase which normally would have been defeated if voted on alone. It is impossible to say, therefore, as defendants contend, that all members which voted for the package are necessarily opposed to the plaintiffs'position.

Moreover, even if it were possible to align all members of the union which voted for the package against the plaintiff, plaintiff could still be named adequate representative of the class. In Horton v. Goose Creek Independent School District, 677 F.2d 471 (5th Cir.1982), a group of students and parents challenged the constitutionality of canine “sniff” searches at local schools. Plaintiffs sought to maintain the suit as a class action, representing all students of the school district. Id. at 487. The school district argued that the plaintiffs were not adequate class representatives, in that a significant number of student and parent members of the class approved highly of the searches. This, in the school district’s opinion, represented the type of class antagonism which prevented the naming of a class representative.

The Fifth Circuit disagreed. The court noted that

“[i]n any conceivable case, some of the members of the class will wish to assert their rights while others will not wish to do so.... Another familiar class suit is that in which one or more taxpayers of a community, suing on behalf of all, challenge the validity of a proposed public expenditure. It is difficult to believe that there ever has been such a case in which a good many taxpayers would not have preferred to have their rights enforced, because of their interest in having the expenditure made. Yet no one has ever doubted the propriety of bringing such a suit as a class action.”

Id. at 490 (quoting, Wright, Class Actions, 47 F.R.D. 169, 174 (1969)). Therefore, although the court found that the district court should properly concern itself with the interests of the absent class members, that concern should not preclude certification of the class where the court could devise a method of assuring representation of all interests.

In Goose Creek, the court found it unnecessary to develop new methods for protecting the interests of the dissenting class members, as it found that the parties to the action adequately represented the interests of all absentees. Id. “Though some members may disagree with the named plaintiffs,” the court found, “their position has been asserted energetically and forcefully by the defendant, which has argued that the school administration must be able to use these searches in order to combat a serious drug problem.” Id. Accord, Dierks v. Thompson, 414 F.2d 453, 457 (1st Cir.1969); Sturdevant v. Deer, 73 F.R.D. 375 (E.D.Wis.1976); Rota v. Brotherhood of Railway, Airline, and Steamship Clerks, supra. Therefore, the court found that all class members’ interests were adequately represented, if not by the plaintiffs, then by the defendants.

In the present case, the possible difference of opinion regarding the necessity of the dues check-off should not defeat the certification of the class. While it appears that some of the class members support the dues program, it is certain that the union will vigorously represent those interests at trial. Plaintiff will represent those class members who do object to the dues check-off and the manner in which it was approved. In this sense, it cannot be said that any class antagonism will prevent all class interests from being represented adequately.

Defendants also argue that plaintiff would make a poor class representative, in that Rule 23.2 requires that a representative must adequately represent not only the members of the association, but the association itself. Because the plaintiff is suing the union, contend defendants, it is impossible for him to represent its interests in this litigation. Defendants cite no case authority for this novel interpretation of the Rule. Indeed, this is hardly surprising, for this interpretation would make it impossible for the membership of a union to bring a class action against its union under the LMRDA. In that the interests of the union itself and those of the union's membership will always be in opposition when a dispute under the LMRDA is being litigated, it is unreasonable to expect the class representative to represent the interests of the union as well.

Gravenstein v. Campion, 96 F.R.D. 137 (D.Alaska 1982) is instructive. In that case, the defendant union also argued that the named representatives of the class had to demonstrate that they would represent adequately the interests of both the membership and the union. Id. at 139. If this interpretation of Rule 23.2 were the correct one, the court held, then it would be impossible for members to sue their own union for violations of the LMRDA. Id. at 140. “This result,” concluded the court, “would conflict with the legislative goal of protecting union members from improper practices of union management, or an unscrupulous majority of the membership.” Id. (citing Kerr v. Shanks, 466 F.2d 1271, 1276 n. 3 (9th Cir.1972)). In addition, it has already been stated above that Rule 23.2 was enacted in order to allow unincorporated associations “entity status,” and not to circumvent the normal class action requirements of Rule 23. Clearly, the named representative must only represent adequately the interests of his side of the litigation as required by Rule 23 when bringing an action under the LMRDA. In this sense, defendants’ contention is groundless and must be disregarded.

6. Rule 23(b).

Having decided that the prerequisites have been satisfied, the Court must determine into which category of Rule 23(b) the action fits. Green, supra. Because of the nature of the defendant’s alleged conduct, and because of the nature of the remedy sought, the case falls squarely within the ambit of Rule 23(b)(2). This portion of the rule concerns actions in which “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final in-junctive or corresponding declaratory relief with respect to the class as a whole.” Fed. R.Civ.P. 23(b)(2).

Plaintiff asks this Court to declare the December, 1982, election to have been conducted in violation of the LMRDA, to award restitution of all dues paid as a result of that election, to issue a permanent injunction restraining the defendant from, collecting dues, and to award the class punitive damages of $10,000. Because.plaintiff requests monetary relief, the defend-ants argue that certification under 23(b)(2) is improper, in that the provision is limited primarily to suits involving only injunctive or declaratory relief.

Defendants’ contention is without merit. The Advisory Committee’s Note to Rule 23 states that 23(b)(2) certification is, inappropriate only where the “final relief relates, exclusively or predominantly to money damages.” See, Advisory Committee’s Note, 39 F.R.D. 98, 102 (1966) (emphasis added). In a case such as this, where the monetary relief is merely one element of an equitable remedy, and is only ancillary to the injunctive or declaratory relief sought, certification under 23(b)(2) is not precluded. See Robinson v. Lorillard Corp., 444 F.2d 791, 801-02 (4th Cir.1971) cert. dismissed, 404 U.S. 1006-07, 92 S.Ct. 573, 30 L.Ed.2d 655 (1972); Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 720 (7th Cir.1969).

Courts have also recognized that certification under 23(b)(2) is especially proper for actions under the LMRDA, in that the action complained of is always applicable to the entire class, and injunctive relief is normally sought as the major remedy. In Hummel v. Brennan, 83 F.R.D. 141 (E.D.Pa.1979), a group of plaintiffs brought an action under the LMRDA, alleging that a dues increase had been approved by the union membership in violation of the notice and secret ballot requirements of the Act. Plaintiffs also sought to certify the case as a class action under Rule 23(b)(2), but the defendants objected, contending that 23(b)(2) certification was unavailable where the plaintiff had requested monetary relief.

In allowing certification, the court noted that the initial level of inquiry in deciding whether a case fits into Rule 23(b)(2) is whether the defendants have allegedly acted on grounds generally applicable to the entire class. If this is the case, then in-junctive relief is appropriate and necessary to remedy the wrong, and any monetary relief, such as restitution, is collateral to the main issue. Id. at 147. In that the issue of the dues increase election was applicable to the entire class, the court allowed certification under 23(b)(2) in spite of an incidental claim for monetary relief. Id.

This case presents the identical situation which confronted the court in Hummel. First, defendants have allegedly violated a duty under the LMRDA which they owed to the entire union membership, thus making injunctive relief an appropriate remedy if the violation is ultimately proved. Additionally, even though plaintiff has requested monetary relief, it appears to the court that he seeks primarily injunctive relief. As Hummel illustrates, the inclusion of a claim for monetary relief will not defeat the certification of a case under 23(b)(2) as long as that claim is incidental to the request for injunctive relief. Therefore, Rule 23(b)(2) is the proper avenue under which to prosecute this action. See Gravenstein v. Campion, supra, (claim for monetary relief incidental to injunctive claim in LMRDA case, thereby making 23(b)(2) certification proper); Smith v. B & O Railroad Co., 473 F.Supp. 572 (D.Md.1979) (23(b)(2) certification inappropriate only where final relief relates exclusively or predominantly to money damages); Connor v. Highway Truck Drivers and Helpers, 68 F.R.D. 370, 375 (E.D.Pa.1975) (claim under LMRDA can be certified under 23(b)(2) where claim for monetary relief incidental).

7. Notice Under Rule 23(b)(2).

One of the distinguishing characteristics of a class action under Rule 23(b)(2) is that no personal notice is strictly required to be given to absent class members. The Ninth Circuit has concurred with this general proposition. In Elliott v. Weinberger, 564 F.2d 1219 (9th Cir.1977), aff'd in relevant part, rev’d in part sub nom. Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979), the court considered the contention of a party opposing a class action that notice was required in all class actions, including those under Rule 23(b)(2). The Ninth Circuit rejected this interpretation of the Rule, finding the weight of authority indicated that due process did not require notice in every (b)(2) action. Id. at 1228. “Only where necessary to provide class members an opportunity to signify whether representation by named plaintiffs is fair and adequate or to intervene to present additional claims or to otherwise come into the action ... does due process require the direction of some sort of notice to absent members of a (b)(2) class.” Id. at 1229.

Under Elliott, the Court holds that no notice is necessary in this case. As discussed above, the Court has found the named plaintiff to be an adequate representative of this class. In this sense, no further input from absent class members is necessary. In addition, it appears to the Court that no claims outside of the ones already presented by the named plaintiff can have direct bearing or relevance in the outcome of this litigation. Thus, the Court finds that notice is not required in this action, and that the matter may proceed as a class action without damage to the due process rights of any of the class members.

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Plaintiff has moved the Court, pursuant to Fed.R.Civ.P. 56(c), for summary judgment on the issue of the defendants’ liability. A motion for summary judgment can only be granted where the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). In that there are several genuine issues of material fact raised in the papers on file, the Court must deny plaintiff’s motion.

As stated above, plaintiff has brought this case under the LMRDA, section 101(a)(3), 29 U.S.C. § 411(a)(3). That section provides:

[ejxeept in the case of a federation of national or international labor organiza-tions, the rates of dues and initiation fees payable by members of any labor organization in effect on the date of enactment of this Act shall not be increased, and no general or special assessment shall be levied upon such members, except-
(A) in the case of a local labor organization, (i) by majority vote by secret ballot of the members in good standing at a general or special membership meeting, after a reasonable notice of the intention to vote upon such question, or (ii) by majority vote of the members in good standing voting in a membership referendum conducted by secret ballot.

29 U.S.C. § 411(a)(3)(A). Plaintiff’s basic allegations are that the defendants breached their duty under this section by allowing retired members of the union to vote in the December, 1982, election which authorized the dues check-off system and wage increase. Additionally, plaintiff claims that the combining of the dues check-off issue with that of the wage increase into one question prevented voting on either issue by itself, thereby denying union members the right to a meaningful vote. In that there are material questions of fact surrounding both of the contentions, this Court must deny summary judgment altogether.

Initially, plaintiff has produced no evidence supporting his claim that retired members should not be allowed to vote in these elections. The Act itself states that all “members in good standing” must be allowed to vote in matters involving dues. 29 U.S.C. § 411(a)(3)(A). An earlier provision indicates that a “member in good standing” is:

... any person who has fulfilled the requirements for membership in such organization, and who has neither voluntarily withdrawn from membership nor has been expelled or suspended from membership after appropriate proceedings consistent with lawful provisions of the constitution and bylaws of such organization.

29 U.S.C. § 402(o).

In interpreting this provision, the Ninth Circuit has indicated that the definition of “member” is not limited to those persons recognized as such by the union. See Brennan v. Local 357, International Brotherhood of Teamsters, 709 F.2d 611 at 614 (9th Cir.1983). Instead, “[t]he Act pro-, vides rights to those persons who have fulfilled the requirements of membership despite the fact that union officials have not performed the ministerial acts necessary to give formal recognition to a person’s status as a member.” Id. (citing Hughes v. Local No. 11 of International Association of Bridge, Etc., 287 F.2d 810, 815 (3rd Cir.1961) cert. denied, 368 U.S. 829, 82 S.Ct. 51, 7 L.Ed.2d 32 (1961), and Parish v. Legion, 450 F.2d 821, 824 (9th Cir.1971)). The court has also indicated that one remains a member of a union until one of two events occurs: (1) the member voluntarily withdraws from the union, or (2) the union expels or suspends the member after appropriate proceedings held pursuant to lawful constitutional or bylaw provisions. Brennan, supra, at 615 (citing Alvey v. General Electric Co., 622 F.2d 1279, 1284 (7th Cir.1980); Erkins v. Bryan, 663 F.2d 1048, 1051 (11th Cir.1981), cert. denied, 459 U.S. 989, 103 S.Ct. 343, 74 L.Ed.2d 384 (1982)).

There is no indication in the record that retired members of the union have voluntarily withdrawn from membership, or that retirees are expelled or suspended pursuant to some constitutional or bylaw provision of the union. In this sense, a genuine issue of fact exists as to the membership and voting status of the retired members who voted in the December, 1982, election. See Wirtz v. Independent Petroleum Workers of America, Inc., Local 1, 307 F.Supp. 462 (N.D.Ind.1969) (a member on a two year leave of absence without pay who was not suspended despite not paying dues was a member in good standing for purposes of the Act). For this reason, the Court cannot grant summary judgment on this issue.

Plaintiff, however, also contends that the combination of two issues into one general referendum issue in the December, 1982, election violated the union membership’s right to a meaningful vote on both subjects. In Sertic v. Cuyahoga Lake, Geauga, & Ashtabula Cos., C.D.C., 423 F.2d 515 (6th Cir.1970), as plaintiff indicates in his motion, the Sixth Circuit held that the combination of two questions in the same ballot measure was prohibited by the LMRDA. In that case, the union had combined the authorization to negotiate a wage increase with the authorization to place a wage assessment for union dues purposes. Id. at 521. This, the court indicated, precluded a vote solely on the issue of the wage assessment, which denied the union membership the right to a meaningful vote on the question. Id.

If Sertic were the last word on this subject, plaintiff would probably be entitled to summary judgment. Other courts have held more recently, however, that the combination of two issues on the same ballot measure is not necessarily indicative of a lack of meaningful vote. In Sheldon v. O’Callaghan, 497 F.2d 1276 (2nd Cir.1974) cert. denied, 419 U.S. 1091, 95 S.Ct. 681, 42 L.Ed.2d 682 (1974), a group of union members, relying primarily on Sertic, argued that their rights under the LMRDA had been violated when they were asked to approve an amended union constitution without being able to vote on each amendment individually. The Second Circuit held that it was unnecessary for the union to allow such a voting procedure, because “the adoption of some of those provisions and the rejection of others might have resulted in an unworkable document, and thrown the operation of the union into confusion.” Id. at 1280. Therefore, because of the degree of interrelatedness in the provisions, the court held that the inability to-vote on single issues separately did not constitute the loss of a meaningful vote.

Similarly, it appears to the Court that the two issues involved in this case, namely the authorization to negotiate a wage increase and authorization for a dues check-off may well be as interrelated as the issues in Sheldon. As defendant indicates in the affidavit of Donald Alford, the Local’s financial situation before the December, 1982, referendum was extremely precarious. Indeed, it appears that the dues increase may have been necessary for the Local’s continued existence. In this sense, the question of the dues increase and the authorization to negotiate a wage increase may be related, in that the negotiation for the wage increase was contingent on the union’s continued existence. The question of the interrelatedness of the two propositions which appeared on the December, 1982, referendum will thus have bearing on whether the union breached its duty to allow for meaningful elections, and constitutes a genuine issue of material fact not resolved by the pleadings and affidavits. See Young v. Hayes, 195 F.Supp. 911 (D.D.C.1961) (not required that all issues in union elections be stated in separate questions).

In addition, other courts have required that the plaintiff must show some intent to deceive or coerce on the part of the defendant in order to recover under the LMRDA. In Brooks v. Local No. 30, United Slate, Tile and Composition Roofers, Camp and Waterproof Workers’ Association, 187 F.Supp. 365 (E.D.Pa.1960), the plaintiffs also argued that their rights under the LMRDA had been infringed by the union’s use of a difficulty phrased ballot. Id. at 368. Although the court held that the union’s use of the opaque language did not “reflect the highest standards of responsibility,” it was also unwilling to state that the language constituted a per se violation of the Act. The fact that there was no showing of an intent to deceive or confuse in the language used and that no evidence was presented to indicate that any member was indeed misled by the ballot’s language indicated to the court that no violation could lie under the LMRDA for the defendant’s actions. See Young v. Hayes, supra (not necessary that all questions be stated separately, as long as the ballot as a whole is not confusing or misleading); see also Gilliam v. Independent Steelworkers Union, 572 F.Supp. 168 (N.D.W.Va.1983) (“meaningful and informed vote” not denied where members given proper and adequate notice as to date and subject matter of vote, and where enough time was given to reflect on the issues and prepare effective support or opposition).

In the instant case, the Court cannot say that the ballot used in the election, even with the combined questions, evinces an intent to deceive or is confusing as a matter of law. It seems quite possible that a reasonable person could find that the ballot is perfectly clear as to its terms, and that there was no palpable intent to deceive in the Local’s confining two issues in one question. Thus, this factor indicates another genuine issue of material fact which precludes the granting of plaintiff’s motion for summary judgment.

IT IS, THEREFORE, HEREBY ORDERED that defendants’ cross-motion for summary judgment on statute of limitations grounds is DENIED.

IT IS FURTHER ORDERED that defendants’ motion for evidentiary hearing and further discovery is DENIED.

IT IS FURTHER ORDERED that plaintiff’s motion to certify the class pursuant to Fed.R.Civ.P. 23(b)(2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff’s motion for summary judgment is DENIED.


source: Caselaw Access Project

author: KEVIN THOMAS DUFFY, District Judge:

license: Public Domain

text:
    The CITY OF NEW YORK, Plaintiff, v. WATERFRONT AIRWAYS, INC., etc., Defendants. Action #1 Carol TOOLAN, as Executrix of the Estate of John E. Toolan, Jr., Deceased, Plaintiff, v. The CITY OF NEW YORK, Defendant. Action #2 Carol TOOLAN, as Executrix of the Estate of John E. Toolan, Jr., Deceased, Plaintiff, v. WATERFRONT AIRWAYS, INC., and AMW Corp., Defendants. Action #3 Eileen McCARTHY, Plaintiff, v. The CITY OF NEW YORK, Defendant. Action #4 Eileen McCARTHY, Plaintiff, v. WATERFRONT AIRWAYS, INC., and AMW Corp., Defendants. Action #5 Joseph C. STAMLER and Susan K. Stamler, Plaintiffs, v. The CITY OF NEW YORK, Defendant. Action #6 Joseph C. STAMLER and Susan K. Stamler, Plaintiffs, v. WATERFRONT AIRWAYS, INC., and AMW Corp., Defendants. Action #7 AMW CORP., a Corporation of New Jersey, Plaintiff, v. The CITY OF NEW YORK, Defendant. Action #8
    Nos. 83 Civ. 6150 (KTD), 83 Civ. 7574 (KTD), 83 Civ. 7798 (KTD), 83 Civ. 7727 (KTD), 83 Civ. 7799 (KTD), 83 Civ. 7728 (KTD), 85 Civ. 7800 (KTD) and 83 Civ. 7509 (KTD).
    United States District Court, S.D. New York.
    Oct. 15, 1985.

      Kreindler & Kreindler, New York City, for plaintiffs Toolan, McCarthy and Stam-ler; Milton G. Sincoff, of counsel.
    Gallagher & Sullivan, Mineóla, N.Y., for defendants Waterfront Airways, Inc. and AMW Corp.; James A. Gallagher Jr., of counsel.
    Roger Milch and Donald R. Heiner, White Plains, N.Y., for plaintiff AMW Corp.; Donald Heiner, of counsel.
    Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City, for defendant City of New York; Daniel A. Tufo, of counsel.
   MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, District Judge:

This case arises from a collision between a Cessna Floatplane (the “Floatplane”), owned by AMW Corp. (“AMW”) and operated by Waterfront Airways, Inc. (“Waterfront”) as an air taxi between New Jersey and Wall Street, and a New York City Police Department Bell 206A Helicopter (the “Helicopter”). The Floatplane had begun its approach from Brooklyn airspace to its landing site in the Wall Street area when it collided in the vicinity of the Brooklyn Battery Tunnel with the Helicopter which was on routine traffic patrol over Brooklyn, New York. The Helicopter crashed into an unoccupied building in Brooklyn and both passengers (a police officer pilot and an observer) died. Wrongful death claims concerning these passengers are currently pending in state court. The Floatplane continued momentarily in its line of flight and then crashed into the East River. The pilot, David Huber Bowen, and a passenger, John Toolan, who was seated next to Mr. Bowen, each apparently lost consciousness during the crash and subsequently drowned. The passengers seated in the rear of the Floatplane, Joseph C. Stamler and Eileen McCarthy, were able to exit the Floatplane before it sank and were rescued by the Coast Guard. Thereafter, a multiplicity of lawsuits were commenced in both the federal and state courts. The first action was commenced by the City of New York (the “City”) against Waterfront. In the second, fourth, and sixth actions, Toolan, McCarthy, and the Stamlers, alleging diversity jurisdiction, sued the City for personal injuries and, in the case of Toolan, wrongful death. These same individuals also commenced actions numbered three, five, and seven against Waterfront and AMW with subject matter jurisdiction predicated on admiralty jurisdiction.

The City has moved (1) to dismiss the second, fourth, and sixth causes of action for failure to join indispensable parties, (2) to dismiss the third, fifth, and seventh causes of action for lack of admiralty jurisdiction, (3) to dismiss all causes of action on the basis of forum non conveniens, (4) to-consolidate all actions in the event its motions to dismiss are denied, and (5) to im-plead Waterfront, AMW and Susan Kinter Bowen, as third-party defendants should the dismissal motions be denied. -Each of the City’s motions will be addressed separately.

(1) Motion To Dismiss For Failure To Join Indispensable Parties

The City has moved to dismiss the second, fourth, and sixth causes of action alleging that Waterfront and AMW are indispensable parties who have not been joined. Rule 19(a) of the Fed.R.Civ.P. requires:

A person ... whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.

The City has failed to show how the specific conditions of Rule 19(a) are met. Indeed, it appears that the Gity, Waterfront, and AMW are, at best, joint tortfeasors, jointly and severally liable for plaintiffs injuries. Joint tortfeasors, however, are not indispensable parties, but merely permissive parties. Fed.R.Civ.P. 19 advisory committee note; Picard v. Wall Street Discount Corp., 526 F.Supp. 1248, 1252 (S.D.N.Y.1981); Kerr v. Compagnie De Ultramar, 250 F.2d 860, 863 (2d Cir.1953). The reasons for this general rule are that joint and several liability permits the plaintiff to recover full relief from any one of the responsible parties, which party then has the option of suing for contribution or indemnity. Thus, there is no legitimate fear of multiple obligations. 3A Moore’s Federal Practice ¶ 19.07 — 1[2.—2] (2d ed. 1985). Complete relief can be accorded among those already parties and the City may perhaps be entitled to recover in a later action any contribution or indemnity due it from Waterfront and/or AMW. Thus, the City’s motion to dismiss for failure to join an indispensable party is denied.

(2) Admiralty Jurisdiction

Plaintiff passengers claim admiralty jurisdiction under 28 U.S.C. § 1333(1) for their causes of action against defendants Waterfront and AMW. The City, which is not a party to these lawsuits, moves to dismiss. Because this is a challenge to the court’s subject matter jurisdiction, Fed.R. Civ.P. 12(h)(3) permits it to be brought to the court’s attention by persons other than the parties to the action.

In Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), the Supreme Court established a two prong test for determining the existence of admiralty jurisdiction. The test requires that the alleged tort (1) have a maritime locale, and (2) “a significant relationship to traditional maritime activity.” Executive Jet at 268, 93 S.Ct. at 504. For a tort to have a maritime locale it must have occurred on navigable waters. Executive Jet at 253, 93 S.Ct. at 497. In the instant case, although the Floatplane eventually crashed into the East River, thus permitting plaintiffs to allege a maritime locale as the situs of the tort, the collision occurred over land, and the City Helicopter crashed into a building in Brooklyn. Thus, it is arguable that the tort did not even have a maritime locale. Assuming that it did, however, I find that the alleged tort does not have a significant connection with traditional maritime activity and thus does not meet the second part of the Executive Jet test.

The court in Executive Jet clearly indicated a narrow view of what aviation accidents should properly fall within a court’s admiralty jurisdiction. “The matters with which admiralty is basically concerned have no conceivable bearing on the operation of aircraft, whether over land or water.” Executive Jet at 270, 93 S.Ct. at 506. The Court further stated that:

[although dangers of wind and wave faced by a plane that has crashed on navigable waters may be superficially similar to those encountered by a sinking ship, the plane’s unexpected descent will almost invariably have been attributable to a cause unrelated to the sea—be it pilot error, defective design or manufacture of airframe or engine, error of a traffic controller at an airport, or some other cause; and the determination of liability will thus be based on factual and conceptual inquiries unfamiliar to the law of admiralty. It is clear, therefore, that neither the fact that a plane goes down on navigable waters nor the fact that the negligence “occurs” while a plane is flying over such waters is enough to create such a relationship to traditional maritime activity as to justify the invocation of admiralty jurisdiction.

Id. at 270-71, 93 S.Ct. at 505.

The mere fact that a plane is a floatplane and thus equipped to make takeoffs and landings in water is insufficient, in and of itself, to be grounds for finding the existence of admiralty jurisdiction. Executive Jet requires a greater connection to navigation or commerce on navigable waters. Id. at 256, 93 S.Ct. at 498. The connection must be one within admiralty’s area of particular competence. “[Admiralty] law deals with navigational rules—rules that govern the manner and direction those vessels may rightly move upon the waters .... It is concerned with maritime liens, the general average, captures and prizes, limitation of liability, cargo damage, and claims for salvage.” Id. at 270, 93 S.Ct. at 505.

This case involves an “air taxi” service in a floatplane across New Jersey territorial waters, which was to land and dock on the waters of the East River. Plaintiff passengers cite to several cases involving float-planes where admiralty jurisdiction was held to be appropriate. These cases, however, are distinguishable from the present one. For example, in Hark v. Antilles Airboats, Inc., 355 F.Supp. 683 (D.V.I.1973), the court spent considerable time evaluating whether the crash of a float-plane into international waters during takeoff and before it was completely “airborne,” fell within the court’s admiralty jurisdiction. Basing its decision primarily upon findings that the navigational concerns of floatplanes during takeoffs and landings are similar to those of other water vessels, and because the flight was to occur over international waters, the court held that the accident was within the court’s admiralty jurisdiction. In the instant case, the collision occurred after the Floatplane was airborne, and prior to its descent for landing, thus the navigational concerns associated with takeoffs and landings in water are simply not present. Nor does this case concern a flight over international waters on a route which could only occur by water or air. Plaintiff’s reliance on the Supreme Court’s decision in Mobil Oil v. Higginbotham, 436 U.S. 618, 619 n. 2, 98 S.Ct. 2010, 2012 n. 2, 56 L.Ed.2d 581 (1978) is also misplaced. The Supreme Court never even addressed the issue of whether the district court was correct in finding admiralty jurisdiction. Plaintiffs’ argument really appears to be based on the district court’s holding in the case. The Western District Court of Louisiana held that a floatplane, flying workers across the Gulf of Mexico to an offshore oil rig, was performing the functions of a crewboat. Higginbotham v. Mobil Oil Corp., 357 F.Supp. 1164, 1167 (W.D.La.1973). The factor most distinguishing Higginbotham from the instant case is that in Higgin-botham water or air travel was apparently the exclusive means of accessing the oil rig. Between New Jersey and New York, however, water and air travel simply are not the exclusive means of access. Although at one time water vessels may have been used for travel between New York and New Jersey, water travel has n.ow become the exception rather than the rule. For these reasons, this is simply not a case fitting within the special areas governed by the admiralty laws. Because I have determined that this case does not meet the test set forth in Executive Jet, plaintiff'passen■gers’ actions against Waterfront and AMW are dismissed for lack of subject matter jurisdiction.

Plaintiff passengers have also argued that in the event this court determines that admiralty jurisdiction is lacking, it should retain jurisdiction over their claims against Waterfront and AMW under the theory of pendent jurisdiction. Plaintiff passengers are suing for personal injuries and wrongful death which are tort claims governed by state law. Their only independent ground for claiming federal jurisdiction was in admiralty. As I have determined there is no admiralty jurisdiction over these claims and because plaintiff passengers’ remaining actions against the City are based solely on diversity jurisdiction, the exercise of pendent jurisdiction would destroy the complete diversity of the parties. See 28 U.S.C. § 1332.

Pendent jurisdiction involves the trial of state law claims in federal court when there exists another ground for federal jurisdiction and all of the claims arose from a common nucleus of operative fact. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). Although the claims asserted against the City, Waterfront, and AMW arose from the same collision and therefore have a common nucleus of operative facts, pendent jurisdiction cannot be applied to defeat the statutory requirement of complete diversity of citizenship. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 377, 98 S.Ct. 2396, 2404, 57 L.Ed.2d 274 (1978). Because plaintiff passengers and defendants Waterfront and AMW are all citizens of New Jersey and thus not diverse parties, the exercise of pendent jurisdiction would destroy complete diversity and is therefore inappropriate. Aldinger v. Howard, 427 U.S. 1, 14, 18, 96 S.Ct. 2413, 2422, 49 L.Ed.2d 276 (1975); Owen Equipment & Erection Co. v. Kroger, 437 U.S. at 377, 98 S.Ct. at 2404 (1978). Accordingly, the third, fifth, and seventh causes of action are dismissed.

(3) Forum Non Conveniens

Defendant City has also moved to dismiss all of these actions on the basis of forum non conveniens. Because the City has moved to dismiss, rather than transfer the case, they are not moving pursuant to 28 U.S.C. § 1404, but are attempting to use the pre-statutory common law doctrine of forum non conveniens.

The City has failed to show any factor supporting its allegation that this court is an inconvenient forum. The cases it cites in support of its motion are inapposite. For example, in Shields v. Mi Ryung Construction Co., 508 F.Supp. 891 (S.D.N.Y.1981), the court did not dismiss the case, but merely transferred it from New York to Saudi Arabia. Additionally, in DeMateos v. Texaco, 562 F.2d 895 (3d Cir.1977), the court held dismissal from the District Court for the Eastern District of Pennsylvania was appropriate where the parties were Panamanian and Panamanian law would apply. In contrast, the City, in this case, is seeking a dismissal from the Southern District of New York, so that the cases can be tried in New York State Court.

Furthermore, the fact that the City waited until after the case was certified as ready for trial, and after conducting two years of discovery, although not controlling, weighs strongly against granting the City’s motion. In sum, the City has not shown sufficiently compelling reasons to upset the plaintiffs’ original choice of forum, and its motion to dismiss for forum non conveniens is denied.

(4) Consolidation

The City has also moved pursuant to Rule 42(a) of the Fed.R. of Civ.P. for an order consolidating the several suits which have arisen out of the collision at issue. None of the parties objects to a joint trial on the issue of liability. Plaintiffs, however, have requested separate trials on the issue of damages. As I find that the evidence regarding liability and damages will be sufficiently different that bifurcated trials will best promote the resolution of this matter, a joint trial will be held on the issue of liability, and separate trials on damages.

(5) The City’s Motion to Implead

The City now seeks to implead, among others, Waterfront and AMW as third-party defendants pursuant to Fed.R. Civ.P. 14. As the City admits in its affidavit, the motion is not being made within the six month period required by Local Rule 3(k). Rule 3(b) permits the court to deny motions not brought within the required time. The City did not bother to make this motion until July of 1985 and I have not been presented with a legitimate reason for this substantial delay. Thus, I find that the circumstances presented here simply do not warrant a relaxation of the requirements of Rule 3(k). The City’s motion to implead is denied.

Finally, the passenger plaintiffs are entitled to a jury trial in the cases still before me as admiralty law is not the basis for this court’s subject matter jurisdiction.

In sum, the City’s motion to dismiss actions 1, 2, 4, and 6 for failure to join an indispensable party and its motion to dismiss all actions for forum non conveniens are denied; actions 3, 5, and 7 in which the City is not a party are dismissed for lack of subject matter jurisdiction; the City’s motion to consolidate the actions into one joint trial on the question of liability is granted, however, there will be separate trials regarding damages; the City’s request to implead Waterfront and AMW is denied; and the passenger plaintiffs are entitled to a jury trial. The City’s motions to compel discovery are referred to Magistrate Buchwald. All other motions are denied as moot.

SO ORDERED.

      . Refer to the caption for the numbering of the actions.

      . Diversity jurisdiction does not exist in actions three, five, or seven because all of the parties involved in these actions are citizens of New Jersey.

      . Susan Kinter Bowen, sued the City as Admin-istratrix of her husband’s estate. David Haber Bowen was the pilot of the Floatplane and died in the collision. This action has been settled and is therefore no longer involved in these proceedings.

      . 28 U.S.C. § 1333(1) reads in pertinent part: The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
      (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.

      . Rule 42 reads in pertinent part:
      (a) Consolidation. When actions involving a common question of law of fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

      . Because actions 3, 5, and 7 (the passenger plaintiffs' suits against Waterfront and AMW) are being dismissed for lack of subject matter jurisdiction, that leaves only actions 1, 2, 4, 6, and 8 (the passenger plaintiffs’ and AMW’s suits against the City) to be consolidated in this trial. There is therefore, one wrongful death action, two personal injury suits, and two suits for property damage.


author: HAUK, Senior District Judge.

text:
    Maria CARRANZA and Margaret Espinoza on Behalf of themselves and all others similarly situated; Kent Winterrowd, plan office administrator of the Juan de la Cruz Farmworkers Pension Plan, Plaintiffs, v. TEX-CAL LAND MANAGEMENT CORPORATION, INC., a California corporation, Defendant.
    No. CV 83-5876-AAH-(MCx).
    United States District Court, C.D. California.
    Oct. 15, 1985.

      Ellsworth, Corbett, Seitman & McLeod by George C. Lazar, San Diego, Cal., and Frank N. Denison, Leucadia, Cal., for plaintiffs.
    Werdell, Chapin & Leverett by Gerald M. Leverett, Bakersfield, Cal., for defendant.
   DECISION AND ORDER FOR JUDGMENT FOR PLAINTIFFS

HAUK, Senior District Judge.

This is an action under 29 U.S.C. § 1145 (ERISA) for unpaid pension fund contributions. Prior to trial, which was set for July 29, 1985, the parties entered into a stipulation that there were no factual controversies and that they desired to submit the matter to the Court. Upon the parties’ filing of Stipulated Facts, the Court ordered the following question submitted for decision:

In light of the facts as stipulated, did defendant have the fight to unilaterally terminate payments to the Juan de la Cruz Pension Fund during the period August 5, 1980 through June 11, 1981?

The matter stood submitted upon the parties’ filing of their respective memorandums of law and a Further Stipulation re Facts and Evidence.

FACTS:

The United Farm Workers of America is the exclusive bargaining representative of the agricultural employees of Tex-Cal Land Management. On December 2, 1979, Tex-Cal and the UFW executed a collective bargaining agreement. The expiration date of this agreement was June 10, 1980. A new agreement was not negotiated by this date and the parties orally agreed to continue the agreement day-to-day until either party gave termination notice or a new agreement was reached.

From March 24, 1980 to June 11, 1980, nineteen meetings were held between management and the union to negotiate a new contract. During the course of these meetings, the parties discussed and agreed to 42 articles which would compose the new contract. Included in these agreed upon articles were Articles 17 and 31. Article 17 addressed Tex-Cal’s right to subcontract. Article 31 provided that Tex-Cal would contribute to the de la Cruz Pension Fund at a rate of 10 cents per employee hour. On August 1, the parties met to sign the contract which had been typed up by the union from the agreed upon articles. Tex-Cal’s attorney and its owner, Steele, questioned the union about Article 17. After a short discussion, Tex-Cal said it could not agree to any contract that contained Article 17.

On August 5, Tex-Cal notified the union that the extension of the agreement was terminated. Tex-Cal communicated that it would not sign the negotiated contract and that no contract currently existed. On September 8 and 9 the parties met again to discuss Article 17, but were unable to resolve their dispute. The parties did not meet again until discussions were held on a collective bargaining agreement that was subsequently signed and went into effect on June 11, 1981.

Between August 5, 1980, and June 11, 1981, Tex-Cal did not make any contribution to the pension fund on behalf of union members it employed. Plaintiffs have sued for those contributions. The parties have stipulated that during this period covered class members worked 379,613 hours and that, if the Court holds that pension contributions are owed, $37,961.30 will be due the union. This calculation is based on Article 31 of the expired contract and the negotiated Article 31 of the new contract.

OTHER PROCEEDINGS

After the parties failed to reach agreement, the union filed an unfair labor practice charge before the state Agricultural Labor Relations Board. The union contended that under the California Labor Code §§ 1153(c) and 1155.2(a) Tex-Cal acted in bad faith when it refused to sign the agreement on August 1.

The ALRB found Tex-Cal acted in bad faith because it initialed Article 17 and then refused to agree to put the Article into the agreement. Labor Code § 1155.2(a) provides that good faith bargaining includes "... the execution of a written contract incorporating any agreement reached if requested by either party....”

The ALRB’s decision was set aside by the California Court of Appeals in Tex-Cal v. ALRB, 135 Cal.App.3d 906, 185 Cal.Rptr. 588 (5th Dist., 1982). The appellate court said that although both parties had initialed Article 17, there had been no meeting of the minds with respect to that article. Therefore, the court held, there had been no bad faith under the Labor Code. The court remanded the case for further administrative fact finding on the question of whether the company in good faith pursued negotiations after the August 5 meeting. Id. at 918-920, 185 Cal.Rptr. 588. According to defendant’s trial brief, that case is currently before the ALRB.

LAW

Expiration of the collective bargaining agreement does not, by itself, relieve the employer from making trust fund payments. Peerless Roofing Co. v. NLRB, 641 F.2d 734, 736 (9th Cir.1981). Upon expiration of the agreement, an employer must maintain the status quo and is not free to unilaterally change established terms and conditions of employment that constitute mandatory subjects of bargaining. This rule ensures that the union will have an opportunity to bargain over pension fund contributions after the agreement expires. Id. The prohibition against unilateral changes is in effect until the parties negotiate a new agreement or bargain in good faith to an impasse. American Distributing Co. v. NLRB, 715 F.2d 446, 449 (9th Cir.1983); Producers Dairy Delivery Co. v. Western Conference of Teamsters Pension Trust Fund, 654 F.2d 625, 627 (9th Cir.1981).

The parties here agree with the law as stated above. They disagree, however, in the effect that a bargaining impasse has on the employer’s obligation to make trust fund payments. Defendant contends that upon impasse it is relieved of its duty to maintain the status quo and can therefore make changes as it wishes. Plaintiffs argue that even if there was an impasse, defendant is not relieved from its obligation to make trust fund contributions. They contend that upon an impasse the employer can only make unilateral changes that are not substantially different than changes offered and proposed by the employer during negotiations. Plaintiffs’ further point out that the only offer made by Tex-Cal with respect to pension fund contributions was the one which the union accepted, 10 cents per employee hour.

ISSUE

At issue here is the extent that an employer can unilaterally change his obligations pursuant to an expired collective bargaining agreement when negotiations for a new agreement have reached an impasse.

DISCUSSION

Plaintiffs’ position is correct. Defendant builds its argument around literally construing language such as that found in the Ninth Circuit decisions of American Distributing and Produce Dairy, supra, which indicate that an employer can make unilateral changes upon a bargaining impasse. These cases, however, do not discuss the scope of the unilateral changes an employer can make.

One Ninth Circuit case, Peerless Roofing, supra, does shed some interesting light on what type of changes an employer can make upon an impasse. In that decision, the employer stopped making pension fund contributions after its collective bargaining agreement with the union expired. The employer argued that it did not owe the contributions since there was an impasse in negotiations for a new contract and the termination of pension contributions was reasonably comprehended in the terms of its prior offers to the union. The court held against the employer, finding it had never proposed to the union the termination of pension fund payments. Furthermore, the court stated, “because we hold that the change was not reasonably comprehended, we do not reach the question of impasse.” 641 F.2d at 735.

Further support for this position is found in 1 C. Morris, The Developing Labor Law 636 (2nd ed. 1983) which concludes: “[w]hen impasse is reached, the employer may make unilateral changes in working conditions, but such changes must not be substantially different or greater than any offers which the employer proposed during the negotiations.”

In the instant case, there is no indication that during the course of negotiations Tex-Cal ever proposed not paying pension benefits. In fact, the evidence shows that Tex-Cal never waivered from the 10 cents per hour rate. The union sought to negotiate a higher rate, but Tex-Cal stood firm at 10 cents per hour. And this is the same rate of contribution that Tex-Cal had paid under the expired agreement.

CONCLUSION

The Court now decides the issue presented by holding that the defendant did not have the right unilaterally to discontinue payments to the Juan de la Cruz Pension Fund during the period August 5, 1980, through June 11, 1981. It follows that, pursuant to 29 U.S.C. 1132(g)(2)(A), plaintiffs are entitled to judgment against defendant for unpaid pension contributions which have been stipulated to be in the amount of $37,961.30.

In addition, plaintiffs are entitled under subsection 1132(g)(2)(B) to interest in the amount of $25,870.18. This same amount of $25,870.18 is assessed again as liquidated damages under subsection 1132(g)(2)(C). Plaintiffs are therefore entitled to collect from defendant the total sum of $89,701.66.

The foregoing shall constitute Findings of Fact and Conclusions of Law in addition to formal Findings of Fact and Conclusions of Law made and entered herein:

FORMAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Jurisdiction of this action is properly in this Court pursuant to sections 502 and 515 of the Employee Retirement Income Security Act of 1974, Public Law 93-406, 88 Stat. 829, as amended (“ERISA”), 29 U.S.Code §§ 1132 and 1145. Laborer’s Health and Welfare Fund for Northern California v. Hess, 594 F.Supp. 273 (N.D.Cal.1984).

2. Venue in this action is proper pursuant to the clause of the Pension Fund Declaration of Trust (Exhibit A, Article II, § 8(d), p. 10) which provides that the county in which an employer’s contributions are payable shall be the proper county in which to institute legal proceedings for collection. Employer’s payments were and are payable in the County of Los Angeles, State of California, pursuant to notification by the Pension Fund on June 18, 1980.

3. This action is brought on behalf of a multi-employer pension fund for the benefit of employees employed by defendant Tex-Cal between August 5, 1980 and June 11, 1981, for which period contributions were not made to the pension fund on behalf of said employees.

4. Pursuant to ERISA, defendant Tex-Cal was required to continue payments to the Pension Fund until its Pension Fund obligation was lawfully terminated. (Hess, supra.) Defendant Tex-Cal failed lawfully to terminate its Pension Fund obligation (e.g., Peerless Roofing Co., Ltd. v. N.L.R.B., 641 F.2d 734 [9th Cir.1981]) by failing to negotiate with the United Farm Workers regarding the termination. Tex-Cal is therefore required to make contributions for the period from August 5, 1980 through June 11, 1981, on behalf of its covered employees.

5. Moreover, under the mandates of ERISA, Tex-Cal was required to notify the pension fund and its employees of the termination of contributions. Having failed to do so, Tex-Cal is required to make contributions for the period from August 5, 1980 through June 11, 1981, on behalf of its covered employees.

6. Because of defendant Tex-Cal’s breach of its obligation under ERISA, plaintiffs Maria Carranza and Margaret Espinoza on behalf of the class members and Kent Winterrowd on behalf of the Pension Fund are entitled to recover for the benefit of the Pension Fund and those employees who worked for Tex-Cal during the period August 5, 1980 through June 11, 1981, the principal amount of $37,961.30 in unpaid contributions pursuant to Section 502(g)(2)(A) of ERISA, 29 U.S.C. 1132(g)(2)(A); interest as computed on the basis of section 6621 of the Internal Revenue Code in the amount of $25,870.18 pursuant to section 502(g)(2)(B) of ERISA; and liquidated damages in the amount of $25,-870.18, pursuant to section 502(g)(2)(C) of ERISA.

7.The Clerk is directed to serve copies of this Decision herein upon counsel of record for all parties.

LET JUDGMENT BE ENTERED ACCORDINGLY.

JUDGMENT

The Court having heretofore made and entered its Decision, Findings of Fact and Conclusions of Law, and good cause appearing,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

1. Judgment is entered in favor- of plaintiffs and against defendant.

2. Pursuant to 29 U.S.C. § 1132(g)(2)(A), (B) and (C), plaintiffs shall have and recover the sum of $89,701.66, consisting of principal in the amount of $37,961.30 in unpaid contributions; interest in the amount of $25,870.18; and an additional amount in liquidated damages of $25,870.18.

3. Plaintiffs shall have and recover their costs of suit incurred herein, which are hereby taxed in the sum of $-

4. The Clerk is directed to serve copies of this Judgment upon counsel of record for the parties.