author: LOUIS H. POLLAK, District Judge.

text:
    Shirley SHIFFLER, Administratrix of the Estate of John W. Shiffler, Deceased, and Shirley Shiffler, in her own right v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES and Westinghouse Electric Corporation and Westinghouse Insurance Plan.
    Civ. A. No. 84-6344.
    United States District Court, E.D. Pennsylvania.
    May 28, 1985.

      Michael R. Lastowski, Saul, Ewing, Remick & Saul, Philadelphia, Pa., for Equitable Life.
    William J. Payne, Kleinard, Bell & Brecker, Philadelphia, Pa., for Westinghouse.
   MEMORANDUM

LOUIS H. POLLAK, District Judge.

This action was originally, filed in the Court of Common Pleas of Philadelphia County in November, 1984. Although the suit is denominated an “Action in Declaratory Judgment,” the complaint seeks an order directing the defendants to make payment to plaintiff of amounts allegedly due under two insurance policies issued to the deceased, John W. Shiffler, through his employer, Westinghouse Electric Corporation (“Westinghouse”). Coverage for both policies was provided by Equitable Life Assurance Society of the United States (“Equitable”). Westinghouse Electric Company is the plan administrator for both plans. Westinghouse and Equitable are defendants in this action as is Westinghouse Insurance Plan (“the Plan”).

In December 1984, defendants removed this action to this court. The petition for removal stated that this court had original jurisdiction to hear this action pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e)(1) in that the suit sought to recover benefits and enforce rights under employee benefit plans and thus, was properly labelled an action under the Employee Retirement Income Security Act (“ERISA”).

Plaintiff filed an “answer to petition for removal” on January 10, 1985. This document was treated as a motion to remand to the Court of Common Pleas and defendants filed a response to this motion on January 22.

The motion to remand argued that the suit raised “a narrow issue encompassed under section 502(a)(1)(B) of ERISA (29 U.S.C. § 1132(a)(1)(B)) over which there is concurrent jurisdiction of both State and Federal Courts and Plaintiff is entitled to pursue her remedies in State Court.” Brief in Support of Plaintiffs Answer to Defendants’ Petition for Removal at 2. In a Memorandum/Order dated January 31, 1985, this court denied the motion to remand. This decision was based upon the fact that plaintiff did not contest the characterization of the suit as one arising under ERISA and the existence of concurrent state and federal court jurisdiction to hear such suits. I rejected plaintiff’s argument that she was entitled to select a state forum rather than a federal forum for her suit and adopted the analysis of this issue set forth in McConnell v. Marine Engineers Beneficial Association, 526 F.Supp. 770 (N.D.Cal.1981).

Plaintiff filed a notice of appeal of this ruling on February 15,1985. On March 18, the Court of Appeals for the Third Circuit granted defendants’ motion to quash the appeal due to the lack of a final order.

Immediately thereafter, on March 22, 1985, plaintiff filed a second motion to remand this suit to the Court of Common Pleas. Defendants oppose this motion on the ground that it merely repeats the arguments made in the original motion to remand. Defendants also contend that the filing of this motion constituted a violation of Federal Rule of Civil Procedure 11 and seek an award of counsel fees thereunder.

Although the second motion to remand contains some discussion of the arguments which were rejected by this court in the Memorandum/Order of January 31, 1985, those arguments do not form the sole basis for the second motion to remand. The current motion also asserts that the action was not properly characterized as a suit under ERISA. Plaintiff contends that the complaint contains solely state law claims against the defendants and that plaintiff did not intend to assert rights under ERISA. Therefore, plaintiff argues, this court could not have had original jurisdiction of this case since diversity of citizenship is lacking. Consequently, the suit was removed to this court without a basis for federal jurisdiction, plaintiff contends, and this court has no choice but to remand the matter to the state courts.

The principles which govern the issues raised by the present motion were quite recently addressed by Justice Brennan, speaking for a unanimous Court, in Franchise Tax Board of the State of California v. Construction Laborers Vacation Trust For Southern California, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). In that case, the California Franchise Tax Board had sued in a California state court to recover taxes allegedly due to the state from the Construction Laborers Vacation Trust, an employee welfare benefit plan within the meaning of ERISA, 29 U.S.C. § 1002(1). The defendant removed the action to federal court and a motion to remand was denied. The district and circuit courts thereafter addressed the merits of the Franchise Tax Board’s claim. On certiorari, the Supreme Court concluded that the district court lacked removal jurisdiction and ordered the matter remanded to the state court.

In reaching this conclusion, the Court reviewed the general principles to be applied when determining whether a case presents a federal question for purposes of federal subject matter jurisdiction. The first issue to be considered is whether the “well-pleaded complaint” rule has been satisfied.

Whether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute, ... must be determined from what necessarily appears in the plaintiffs statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.

Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 724-25, 58 L.Ed. 1218 (1914) quoted in Franchise Tax Board, supra, at 103 S.Ct. 2846. Thus, the fact that a defendant may assert an affirmative defense based upon federal law is not a basis for a federal court to obtain jurisdiction. A federal right or immunity must be an essential element of the plaintiffs cause of action for the suit properly to be maintained in federal court. See Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936).

When applying this principle, the courts have consistently held that “the party who brings a suit is master to decide what law he will rely upon.” The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913). “[Wjhere plaintiffs claim involves both a federal ground and a state ground, the plaintiff is free to ignore the federal question and pitch his claim on the state ground.” Salveson v. Western States Bankcard Association, 731 F.2d 1423, 1427 (9th Cir.1984) quoting 1A Moore’s Federal Practice ¶ 0.160, at 185 (2d ed. 1979).

Applying these principles to the complaint in the present case, there does not appear to be a basis for federal jurisdiction. None of the claims in the complaint explicitly relies upon ERISA or any other federal statute. Plaintiff seeks to apply general rules of contractual interpretation as well as equitable principles of estoppel as a basis for recovery of the amounts allegedly due under the two insurance policies in question. These causes of action would usually be governed by state law.

Defendant argues that at least some of plaintiffs claims are preempted by ERISA which contains a broad provision displacing all state laws which relate to any employee benefit plan as described in ERISA. 29 U.S.C. § 1144. In addition, defendant asserts, the remaining state law claims in the complaint are properly before this court since they are pendent to the ERISA claims.

As a general matter, preemption is a defense which can not be considered when determining whether the complaint contains any federal question claims which support federal court jurisdiction. Trent Realty Associates v. First Federal Savings and Loan Association of Philadelphia, 657 F.2d 29 (3d Cir.1981). However, the courts have created á limited exception to this rule when the plaintiffs “artful pleading” is the sole reason for the omission of the federal issue from the complaint. In other words, “a plaintiff may not defeat removal by omitting to plead necessary federal questions in a complaint.” Franchise Tax Board, supra, 103 S.Ct. at 2853.

This “artful pleading” doctrine does not turn upon the motives of the plaintiff in framing the complaint. The question to be considered under this doctrine is whether the suit brought by the plaintiff is one which is necessarily governed by federal law even though state law would provide a basis for such a suit in the absence of federal law.

This doctrine has most frequently been applied to suits which fall within the purview of § 301 of the Labor Management Relations Act (“LMRA”). Thus, in cases such as Avco Corp. v. Aero Lodge No. 735, Int’l Assn of Machinists, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), suits brought in state court in the guise of contract actions but which involve agreements within the scope of § 301 have been found to be actions within the original jurisdiction of federal courts. Some courts have suggested that the “artful pleading” doctrine is uniquely applicable to labor law issues in which federal statutes so dominate the landscape that a labor law suit in state court will necessarily involve the application of federal principles. Eitmann v. New Orleans Public Service, Inc., 730 F.2d 359 (5th Cir.1984). Courts which take this restrictive view of the “artful pleading” doctrine have thus declined to apply it to suits in which the state law claim is allegedly displaced by ERISA. Powers v. South Central United Food & Commercial Workers Unions and Employers Health & Welfare Trust, 719 F.2d 760 (5th Cir.1983). See also Bell v. Amcast Industrial Corp., 607 F.Supp. 486 (S.D.Ohio 1985).

However, Justice Brennan’s opinion in Franchise Tax Board clearly establishes that the “artful pleading” doctrine is not merely applicable to labor law disputes. That opinion describes the general principles derived from Avco as follows:

The necessary ground of decision was that the preemptive force of § 301 is so powerful as to disclace entirely any state cause of action “for violation of contracts between an employer and a labor organization.” Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Avco stands for the proposition that if a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily “arises under” federal law.
____It may be that, as with § 301 as interpreted in Avco, any state action coming within the scope of § 502(a) of ERISA would be removable to federal district court, even if an otherwise adequate state cause of action were pleaded without reference to federal law.

Franchise Tax Board, supra, 103 S.Ct. at 2853-54 (footnotes omitted). The Court then evaluated whether the cause of actions asserted in the case before it could be said to have been displaced by ERISA and concluded that they could not because ERISA did not provide for suits of the type asserted in the complaint before them. Thus, the state law claims in that complaint were not inherently matters governed by federal law and were remanded to the state courts for resolution on the merits.

Although Franchise Tax Board was found not to involve a case of “artful pleading,” it is apparent from the discussion of that doctrine in the Court’s opinion and from the analysis employed by the Court in arriving at its holding that even where the complaint does not explicitly present federal claims, the suit may be removed to federal court if a federal statute displaces the state law cause of action alleged. In such circumstances the state law claim alleged by the plaintiff has been preempted by federal law and cannot form a basis for relief. At the same time, federal law provides a cause of action which replaces the preempted state law claim. Therefore, the claim necessarily arises under federal law despite the failure of the complaint to identify the federal statutory basis for suit.

As noted earlier, ERISA contains a broad preemption clause which states:

the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereinafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title.

29 U.S.C. § 1144(a). However, the statute also creates some exceptions to this broad preemption provision. For example, subsection (b)(2)(A) of section 1144 states that state laws regulating insurance, banking or securities are unaffected by ERISA.

Defendant contends that this broad preemption provision establishes that some of plaintiff’s claims are necessarily governed by federal law. However, plaintiff asserts that certain of the claims asserted in the complaint are the types of state law claims which fall within the exceptions to the preemption clause of ERISA.

Unfortunately, neither party has addressed the preemption issue in a manner which would allow this court properly to evaluate whether any of plaintiff’s asserted state law claims has been displaced by ERISA and replaced by a federal cause of action. Therefore, before I can rule on the appropriateness of removal in the present case, I must ask the parties for further briefing on the following questions:

1) Which of the counts of plaintiff’s complaint, if any, assert claims which are preempted by ERISA and replaced by a cause of action under 29 U.S.C. § 1132(a)(1)(B)?
2) If any claims are identified under question 1 as a basis for removal, what would be the basis for this court’s jurisdiction (1) over the claims which are not preempted and replaced by ERISA and/or (2) over the parties against whom only state law claims have been stated?

Once these questions have been fully briefed, I will have a basis for evaluating whether this court has subject matter jurisdiction of any of plaintiff’s claims under the “artful pleading” doctrine as explained in Franchise Tax Board.

Because the burden is upon the removing party to establish that removal was proper, 14A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3739 at 574 (1985), I will order that defendants submit the first brief on these questions within twenty (20) days of the date of this Memorandum. Plaintiff will then be allowed fourteen (14) days from the date of filing of defendants’ brief in which to file a responsive brief. Defendants will be allowed ten (10) days from the date of filing of plaintiff's brief in which to submit a reply brief.

Also pending before this court at this time is Equitable’s motion to compel responses to its request for production of documents. Plaintiff opposes this motion on the ground that discovery is inappropriate while this court’s subject matter to hear this case is undecided. However, whether or not this court concludes that plaintiff’s motion to remand should be granted, discovery will proceed between these parties either in a state court or in this court. Therefore, there is no benefit to the parties by delaying discovery pending the resolution of the present motion to remand. Accordingly, I will grant Equitable’s motion to compel.

      . The Court of Appeals for the Ninth Circuit has concluded that the "artful pleading" doctrine creates two classes of preemption which are treated differently for purposes of federal jurisdiction. In one case, federal law preempts a state law cause of action but provides no federal law cause of action to replace the preempted claim. In that situation, preemption is solely a defense and cannot be relied upon as the basis for removal. In the other case, federal law both preempts the state law cause of action and creates a federal cause of action to replace the preempted claim. In the latter situation, despite the fact that the complaint appears to present only state law claims, those claims are necessarily governed by federal law and may form the basis for federal question jurisdiction. E.g., Hunter v. United Van Lines, 746 F.2d 635 (9th Cir.1984); Olguin v. Inspiration Consolidated Copper Co., 740 F.2d 1468 (9th Cir.1984); Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir.1984).

      . ERISA defines "State law” to include "all laws, decisions, rules, regulations, or other State action having the effect of law, or any State." 29 U.S.C. § 1144(c)(1).

      . Plaintiff asserts that at least one of the insurance policies under which plaintiff seeks benefits, the Personal Accident Insurance Plan, is not an employee welfare benefit plan subject to ERISA. However, plaintiff admits that the other policy, the Westinghouse Insurance Plan, Group Policy, is subject to ERISA. Thus, even if plaintiff is correct in her representation regarding the status of the Personal Accident Insurance Plan — a question I need not resolve at this time — it is possible that ERISA applies to the Westinghouse Insurance Plan, Group Policy and that the claims relating to that policy would ultimately be found to be federal in nature. If so, the Westinghouse Insurance Plan, Group Policy claims could provide a basis for federal question jurisdiction while the claims relating to the Personal Accident Insurance Plan could arguably remain in this forum as pendent state law claims.

      . ERISA provides for concurrent state and federal court jurisdiction of claims brought by a participant or beneficiary to recover benefits due under the terms of a plan, to enforce rights under the terms of a plan, or to clarify rights to future benefits under a plan. These are claims under 29 U.S.C. § 1132(a)(1)(B). All other civil actions created by ERISA are matters over which federal courts have exclusive jurisdiction. 29 U.S.C. § 1132(e)(1).
      If a claim is one which is within the exclusive jurisdiction of the federal courts, it cannot be removed to federal court from state court since the state court had no jurisdiction over the claim. Lambert Run Coal Co. v. Baltimore & Ohio RR Co., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671 (1922); 1A Moore’s Federal Practice fl 0.157[3.-1] to [3.-5] (1985); 14A C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure §§ 3721 and 3722 (1985). When such a claim is removed to the federal court it must be dismissed for lack of jurisdiction. Therefore, the only type of ERISA claim which could replace a state law claim and form a basis for a valid removal would be a claim under 29 U.S.C. § 1132(a)(1)(B).


source: Caselaw Access Project

author: VAN SICKLE, Senior District Judge.

license: Public Domain

text:
    Stephen C. SORENSEN and Connie Sorensen, Plaintiffs, v. TENNECO OIL COMPANY, a foreign corporation; and N-L Well Service-N-L Industries, Inc., Defendants, and TENNECO OIL COMPANY, a foreign corporation, Third Party Plaintiff, v. DYNA JET, INC., Third Party Defendant.
    Civ. No. A1-84-71.
    United States District Court, D. North Dakota, Southwestern Division.
    May 28, 1985.
    David F. Senn, Dickinson, N.D., for plaintiffs.
    Paul G. Woutat, Grand Forks, N.D., for N-L Well Services-N-L Industries, Inc.
    B. Timothy Durick, Bismarck, N.D., for Tenneco Oil Co.
    Richard N. Jeffries, Moorhead, Minn., for Dyna-Jet, Inc.
   MEMORANDUM AND ORDER

VAN SICKLE, Senior District Judge.

Plaintiffs allege in this action that Stephen Sorensen (Sorensen) was injured while employed by Dyna Jet, Inc. (Dyna Jet). Sorensen and his wife brought suit against the general contractor, Tenneco Oil Company (Tenneco), and a subcontractor, N-L Well Service — N-L Industries, Inc. Tenneco subsequently brought a third party action against Sorensen’s employer, Dyna Jet. Tenneco and Dyna Jet have moved for summary judgment against each other on the third party action. The primary issue in both motions is whether the provisions of the North Dakota Workmen’s Compensation Act preclude enforcement of the indemnification agreement between Tenneco and Dyna Jet. Dyna Jet has also moved to certify this issue to the North Dakota Supreme Court.

CERTIFICATION

Dyna Jet has moved to certify the following question to the North Dakota Supreme Court:

In a personal injury action brought against a Third Party Tort Feasor [sic], do the exclusive remedy provisions of Chapter 65 of the North Dakota Century Code bar an action by the Third Party Tort Feasor [sic] against a complying employer upon a written indemnity agreement between the Third Party Tort Feasor [sic] and the complying employer?

Doc. No. 42 at 1-2. Tenneco resists the motion, arguing that this court has already determined the issue, that this court has the capacity to determine state law (even if it is an open question), and that the North Dakota Supreme Court’s view on the matter is clear.

Although the narrow question raised by Dyna Jet has not been explicitly resolved by the North Dakota Supreme Court, this court has already ruled on the precise issue in one case and addressed the issue by inference in two other decisions. And although the state Supreme Court decisions are not exactly on point, they provide this court with sufficient precedent to resolve the issue without certification. See infra at 840, 841.

SUMMARY JUDGMENT MOTIONS

Tenneco has moved for summary judgment, requesting this court to

order third party defendant Dyna Jet to defend, indemnify and hold harmless Tenneco, to reimburse Tenneco for its costs, expenses and attorneys’ fees, and to be subject to an adverse judgment for any and all amounts adjudged against Tenneco.

Doc. No. 38 at 7. Summary judgment under Rule 56 is not the appropriate method to obtain the type of relief requested.

In fact, Tenneco is requesting a declaratory judgment which finds that Dyna Jet is responsible for the defense of this suit and any liability imposed upon Tenneco. Although mistitled as a summary judgment motion, Tenneco’s attempt to move for a declaratory judgment is sufficient to place the issue before the court. The court notes, however, that Dyna Jet’s cross-motion is properly labeled as a motion for summary judgment since Dyna Jet’s requested relief is dismissal from the case.

1. Indemnity

Employers who comply with the provisions of the North Dakota Workmen’s Compensation Act are not liable for damages “at common law or by statute for injury to or death of any employee.” Gernand v. Ost Services, Inc., 298 N.W.2d 500, 503 (N.D.1980). This restriction of remedy in situations where the employer complies with the state’s workmen’s compensation provisions is commonly known as the exclusive remedy rule. Most jurisdictions, including North Dakota, refuse to consider the exclusive remedy rule as absolute.

Generally, the rule provides that when an employer is in compliance with the workmen’s compensation statutes, the employee’s exclusive remedy is limited to recovery under the workmen’s compensation statutes. However, there are some exceptions to the exclusive remedy rule which are not applicable here.

Id. at 504 (emphasis added). The most common exception to the rule concerns contractual indemnity provisions. 2A A. Larson, The Law of Workmen’s Compensation § 76.42 at 14-630 to -631 (1983 & Supp.1984).

This court has addressed the indemnity exception to the exclusive remedy rule on several occasions. In Nelson v. United Power Association, Inc., No. A1-81-146 (D.N.D. Mar. 24, 1983), this court recently held that an indemnity agreement between an employer and a third party retains valid- . ity despite the provisions of the North Dakota Workmen’s Compensation Act:

[T]here is no evidence that § 65-01-08 was meant to bar private contractual provisions for indemnity, although it is clear that it was meant to bar equitable indemnity. If the legislature had meant to deny this contractual freedom one would assume that they would have stated as much.

Id. at 4 (Doc. No. 38, Ex. G).

The Nelson decision is consistent with this court’s previous rulings concerning noncontractual indemnity. In White v. McKenzie Electric Cooperative, 225 F.Supp. 940 (D.N.D.1964), Chief Judge Register ruled that “[i]n the absence of [an] independent contractual relationship and duty between employer and third party, indemnity is not allowed.” Id. at 946. The necessary inference from Judge Register’s decision is that where a contractual indemnity provision exists, indemnity is allowed.

Dyna Jet argues that this court’s interpretation of North Dakota law is incorrect. Although the North Dakota Supreme Court has not explicitly adopted the contractual indemnity exception, it has made numerous references to that exception. In Gernand, quoted above, the court recognized that there are some exceptions to the exclusive remedy rule and made favorable mention of Chief Judge Register’s decision in White. 298 N.W.2d at 504. Several years later, the North Dakota Supreme Court stated in dicta (due to want of a justiciable controversy at that point in the litigation) that the contractual indemnity exception to the exclusive remedy rule “was recognized in the case of White v. McKenzie Electric Cooperative, Inc.” and that “a judgment would be entered against [the employer] only if an independent contractual relationship is found to exist between [the subcontractor] and [the employer].” United Pacific Insurance Co. v. Aetna Insurance Co., 311 N.W.2d 170, 173 (N.D.1981) (emphasis omitted). This language makes it clear that the North Dakota Supreme Court believes that an independent contractual relationship between an employer and a third party (other than the injured employee) creates an exception to the exclusive remedy rule, thereby allowing judgment against an employer (such as Dyna Jet) in favor of a third party (such as Tenneco) who has entered into an indemnity contract with the employer.

Dyna Jet also argues that through the more recent decision of Layman v. Braunschweigische Maschinenbauanstalt, 343 N.W.2d 334, 338, 344 (1983), the North Dakota Supreme Court “has clearly decided that contribution is barred and, by that decision, has signaled that indemnity would also be barred.” Doc. No. 41 at 2. Of course, the Supreme Court had decided long before Layman that contribution is barred (see id. at 344), even before the court issued its United Pacific decision adopting, albeit in dicta, the contractual indemnity exception. It is therefore incorrect to assume that Layman affects the continuing precedential value of United Pacific. Nor is this court able to perceive in the Layman decision a “signal” that contractual indemnity would also be barred. On the other hand, the Layman decision reiterates the general (and not absolute) rule of the exclusive remedy doctrine (343 N.W.2d at 338) as well as the supreme court’s previous conclusion “that any changes in the comparative negligence act or the exclusive remedy provision and subrogation provisions of the workmen’s compensation statutes are matters best left to our legislature.” Id. at 350 (emphasis added).

Although the North Dakota Supreme Court has not resolved the issue of whether contractual indemnity between an employer and a third party creates an exception to the exclusive remedy doctrine, there is sufficient indication from that court’s opinions to convince this court that an employer foregoes that protections of the exclusive remedy doctrine when he enters into an indemnity contract with someone other than the employee who is later injured. This court therefore holds that the contractual agreement of indemnity between Dyna Jet and Tenneco is not invalidated by the provisions of Chapter 65 of the North Dakota Century Code. It is therefore appropriate for the court to enter a declaratory judgment in accordance with this holding and deny both motions for summary judgment.

2. Obligation to Defend

Tenneco’s request to require Dyna Jet to defend this action is untimely under the circumstances. Sorensen commenced the action in April, 1984. Five months later, on September 4, 1984, Tenneco filed its answer and began discovery. Although Tenneco could have made its motion at that time, it did not. Instead, it waited until January 18, 1985, to bring the motion, two weeks before the end of the discovery period. Trial has been set once for June 21, 1985, and will be reset in the very near future. Discovery has been completed and the final pretrial has been held. Although counsel for Dyna Jet is prepared to defend his client, he is not prepared to defend Tenneco as well. Doc. No. 55 at 1-2. Under these circumstances, it is best to deny the request for declaratory judgment as to Dyna Jet’s obligation to defend and allow counsel to raise it anew following trial. Such a result does not prejudice Tenneco since should it prevail on this issue, it will be reimbursed for its defense of the action.

Based on the entire file, IT IS ORDERED

1) that it is declared and adjudged that the contractual agreement of indemnity between Dyna Jet and Tenneco is not invalidated by the provisions of Chapter 65 of the North Dakota Century Code;

2) that Dyna Jet’s motion to certify the question at issue to the North Dakota Supreme Court is DENIED;

3) that Tenneco’s motion for summary judgment as to Dyna Jet’s duty to defend is DENIED without prejudice; Tenneco’s motion for summary judgment is in all other respects DENIED; and

4) that Dyna Jet’s motion for summary judgment is DENIED.

      . See Layman v. Braunschweigische Maschinenbauanstalt, 343 N.W.2d 334, 338, 344 (1983) (no contractual indemnity agreement); United Pac. Ins. Co. v. Aetna Ins. Co., 311 N.W.2d 170, 173 (referring to the contractual indemnity exception but finding a lack of jurisdiction to decide the issue of liability under the indemnity agreement prior to a jury verdict); Gemand v. Ost Servs., Inc., 298 N.W.2d 500, 503-04 (1980) (no contractual indemnity agreement); Saylor v. Holstrom, 239 N.W.2d 276, 278-83 (1976) (no contractual indemnity agreement).

      . Nelson v. United Power Ass’n, Inc., Civ. No. A1-81-146 at 4-5 (D.N.D. March 24, 1983) (Van Sickle, J.) (Doc. No. 38, Ex. G).

      . White v. McKenzie Elec. Coop., 225 F.Supp. 940, 945-46 (D.N.D.1964) (Register, CJ.) (non-contractual indemnity insufficient to override workmen’s compensation statutes; court states in dicta that contractual indemnity supersedes those provisions); Paur v. Crookston Marine, Inc., 83 F.R.D. 466, 473 (D.N.D.1979) (Benson, CJ.) (“By the same reasoning used in White, [§ 65-01-08] precludes any action for common law contribution or indemnity____” (emphasis added)).

      . For example, application of the indemnity agreement will not be necessary unless Sorenson receives a verdict in his favor against Tenneco. Such an occurrence clearly entails material issues of fact.

        . Although there may be some question as to whether the state court would resolve the two issues raised by Dyna Jet in a declaratory action (see Aberle v. Karn, 316 N.W.2d 779, 781 (N.D. 1982); United Pacific, 311 N.W.2d at 174; N.D. Cent.Code § 32-23-06), it is clear that federal courts can employ declaratory judgment procedures to determine questions concerning indemnity and obligations to defend. See generally 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure §§ 2756, 2760 (1983); 20 J. Appleman, Insurance Law & Practice §§ 11351— 54, 11357 (1980); 10 Fed.Proc., L.Ed. § 23:21 to -23 (1982).

      . This court is aware that the exclusive remedy rule is ostensibly directed only to the ability of an employee to sue the ‘employer and does not explicitly concern third-party suits against the employer. See N.D.Cent.Code § 65-01-08 (1960). It could therefore be argued that an exception to the exclusive remedy rule is unnecessary, and that by direct application a third party (other than the employee) may recover damages from an employer that were paid to the employee by the third party. Nonetheless, it has become common practice to conceptualize the exclusive remedy doctrine as if it disallowed any action by any person against a complying employer in relation to an employee’s injuries, thereby making the use of the term "exception” to the exclusive remedy doctrine proper.

      . The North Dakota Supreme Court adopted this position in Saylor v. Holstrom, 239 N.W.2d 276 (N.D.1976) (aff’g district court’s decision applying White) and explicitly relied on . White in Gernand v. Ost. Servs., Inc., 298 N.W.2d 500, 504 (N.D.1980).

      . See also Paur v. Crookston Marine, Inc., 83 F.R.D. 466 (D.N.D.1979), where Chief Judge Benson held that § 65-01-08 “precludes any action for common law contribution or indemnity against [the employer].”' Id. at 473 (emphasis added).

      . The court notes that the Tenneco-Dyna Jet indemnity provision appears equitable in that each party agreed to indemnify the other should one of its employee’s suffer an injury in relation to the performance of the contract. In other words, had a Tenneco employee been injured in the performance of the contract, Tenneco would have been required to indemnify Dyna Jet, even if the injury resulted from both Dyna Jet’s and Tenneco’s negligence. Such a contract provides employers with an extra incentive to assure the safety of their employees.


author: BECHTLE, District Judge.

text:
    William J. MULDOON v. SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL NO. 252; West Village; and Macke Company.
    Civ. A. No. 85-1157.
    United States District Court, E.D. Pennsylvania.
    May 28, 1985.

      Robert M. DiOrio, Media, Pa., for plaintiff.
    Robert C. Cohen, Philadelphia, Pa., for Local 252.
    Jeffrey G. Weil, Judy Popper, Philadelphia, Pa., for West Village.
    Leo A. Haekett, Media, Pa., for Macke Co.
   MEMORANDUM AND ORDER

BECHTLE, District Judge.

Presently before the court are defendants’ motions to dismiss for failure to state a claim upon which relief can be granted. In particular, defendants argue that the six month statute of limitations contained in the Labor-Management Relations Act bars plaintiff’s unfair labor practice claims. For the reasons stated herein, defendants’ motions will be granted.

FACTS

When considering a defendant’s motion to dismiss, the court must interpret the allegations in plaintiff’s complaint and make all inferences in the light most favorable to plaintiff. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). With this rule in mind, the court turns to the facts alleged in plaintiff’s complaint.

Until January 31, 1984, plaintiff was employed as a Maintenance Superintendent by either West Village or Macke Company (the “employers”). Additionally, during the period of time in issue in the present case, plaintiff was a member of a collective bargaining unit represented by Service Employees International Union Local No. 252 (the “Union”).

The collective bargaining agreement between West Village and the Union provided in pertinent part: 3. Each new employee shall be on a trial period of ninety (90) days from the date of hire, during which period the Employer is the sole judge whether the employee shall continue as a regular employee. In this period, the Employer may terminate the employee for any cause whatsoever without recourse to the grievance procedure.

6. The Employer has the right to discharge any employee for just cause. Dishonesty and intoxication shall be deemed among the causes sufficient for dismissal without hearing.

16. All matters of dispute between the Employer and the Union or the employees covered by this Agreement, shall be submitted to arbitration at the request of either party; said arbitration to be conducted in the following manner:

Employer shall choose one (1) arbitrator; Union shall choose one (1) arbitrator; and all matters in dispute, as aforesaid, shall be referred for decision to said arbitrators. If the arbitrators thus selected, cannot agree upon a decision of said disputed matter so referred to them, they shall, within five (5) days select a third arbitrator. The decision of any two of the said three arbitrators shall be final, binding and conclusive upon the parties hereto, and all employees of the Employer covered by this Agreement. The expense of such arbitration shall be borne equally between the parties. Every dispute involving the discharge of any employee shall be decided by the arbitrators within five (5) days after said matter has been submitted to them. Should the arbitrators order the reinstatement of the employee to his former position, they may award him back pay for all working time lost due to such discharge, if their decision is that good and sufficient cause did not exist. However, if the arbitrators see fit under all the circumstances to provide that no back pay shall be paid, such decision shall be final and binding upon the parties hereto.

On January 31, 1984, the employers demanded that plaintiff, without compensation, transport payroll records. This service was outside plaintiffs job description and prerequisites and had not been previously required of plaintiff or other employees. Plaintiff refused to perform the service. Thereupon, plaintiff was discharged from his employment by the employers who continue to refuse to reinstate plaintiff.

Subsequent to his discharge, plaintiff repeatedly requested that his Union submit the matter to arbitration under the Collective Bargaining Agreement’s arbitration clause. The Union consistently, ref used, in bad faith plaintiff avers, to pursue, the matter. Further, plaintiff contends, the Union’s refusal was a result of a conspiracy agreement by the employers and the Union.

Consequently, on December 28, 1984, plaintiff initiated this lawsuit by Writ of Summons in the Court of Common Pleas of Delaware County against West Village, Macke, and the Union. A complaint was filed on February 20, 1985. On March 4, 1985, the case was removed by defendants which assert that this court has subject matter jurisdiction under 29 U.S.C. § 185.

In his complaint, plaintiff sets forth four counts: (I) the employers are liable to plaintiff for breach of an implied contract; (II) the employers are liable to plaintiff for breach of the collective bargaining agreement; (III) the employers and the Union are liable to plaintiff for breach of the collective bargaining agreement; and (IV) the employers and the Union are liable to plaintiff for conspiracy to deny plaintiff access to the arbitration provisions • of the collective bargaining agreement.

Each defendant subsequently filed a motion to dismiss for failure to state a claim upon which relief can be granted. Defendants assert that under the Supreme Court case DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the applicable statute of limitations to this hybrid section 301 unfair representation suit is the six month provision provided in 29 U.S.C. § 160. Therefore, defendants contend that plaintiff’s complaint, filed more than six months after the discharge, must be dismissed as barred by the statute of limitations.

DISCUSSION

Title 29 U.S.C. § 160(b) provides in pertinent part:

That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made.

29 U.S.C. § 160(b). The Supreme Court held in DelCostello, supra, that this six month statute of limitations applies to a second circuit case and a fourth circuit case which were consolidated for argument. Both cases involved hybrid § 301/unfair representation claims. In neither case did the Court distinguish between plaintiff’s causes of action against employer and against union.

In the fourth circuit case in DelCostello, petitioner was discharged from his employment as a truck driver on June 27, 1977, after he refused to “drive a tractor-trailer that he believed was unsafe.” 462 U.S. at 155, 103 S.Ct. at 2285. Petitioner’s union made informal attempts to get petitioner reinstated by his former employer. After the former employer had rebuffed the informal overtures, the union brought a formal grievance under the collective bargaining agreement. A regional joint union-management committee heard the matter and ruled that the grievance was without merit. “Under the collective bargaining agreement, the committee’s decision [was] final and binding on the parties.” Id. On March 16, 1978, petitioner initiated a lawsuit against the employer and the union. Against the employer, petitioner alleged that employer discharged him in violation of the collective bargaining agreement. Against the union, petitioner asserted that the union did not fairly represent him when it prosecuted his grievance. The Supreme Court held that the applicable statute of limitations, for plaintiff’s hybrid action against the employer and the union, was the six month provision contained in 29 U.S.C. § 160(b) and not the state’s “30-day statute of limitations for actions to vacate arbitration awards” or the state’s 3-year statute for actions on contracts. Id. at 156, 103 S.Ct. at 2286.

In the second circuit case in DelCostello, the respondents, who were craft welders, were either laid off or assigned to other work because the employer assigned welding work to employees who were not craft welders. Respondents who were union members filed grievances with the union in 1975 and 1976, asserting that employer’s job assignments violated the collective bargaining agreement. The union pursued the grievances to an arbitration hearing, but the arbitrator held that the collective-bargaining agreement permitted the employer to make the job assignments in issue. On January 9, 1979, respondents initiated a hybrid § 301/unfair representation lawsuit against the employer and the union. Like petitioner in the fourth circuit case, respondents asserted that the employer breached the collective bargaining agreement and that the union breached its duty of fair representation. The Supreme Court held that the applicable statute of limitations, against the employer and the union, was the six month statute of limitations provided in 29 U.S.C. § 160(b) and not the state’s “90-day statute of limitations for actions to vacate arbitration awards” or, with respect to the union, the state’s “3 year statute of limitations for malpractice actions.” Id. at 157, 158, 103 S.Ct. at 2287.

As background to the analysis of the DelCostello decision, it is necessary to keep in mind the Rules of Decision Act (“Act”), Rev.Stat. § 721, 1 Stat. 92 (1789). That Act directs federal courts to apply state law in trials at common law, unless federal law requires or provides otherwise. Under DelCostello, the exception to the application by the federal courts of the state statute of limitations is triggered “when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking.” 462 U.S. at 172, 103 S.Ct. at 2294. Therefore, turning now to the allegations and asserted causes of action in the present case, the court must determine whether the federal 6-month statute of limitations or the state statutes of limitations is most appropriate.

With regard to plaintiff’s Count IV in which plaintiff claims that the Union and his employers conspired to deprive him of his right to arbitration, plaintiff asserts that Pennsylvania’s 2-year statute of limitations for actions for intentional torts should be applied. 42 Pa.C.S.A. § 5524. After considering plaintiff’s position carefully, the court holds that, just as the Supreme Court in DelCostello held that the federal statute of limitations is applicable

in the wrongful discharge ease out of the fourth circuit, the federal statute of limitations is the appropriate statute here. Plaintiff, in the instant case, like the union members in the DelCostello case, enjoyed the benefits of federal labor law, including the right to petition his Union to process his grievances on his behalf. The only differences asserted by plaintiff between the union members in DelCostello and the present case is that (1) the Union here, unlike the unions in DelCostello, did not process the member’s grievances, and (2) plaintiff here, unlike the union members in DelCostello, asserts a conspiracy count. Neither difference, however, bear legal significance. First, there is no apparent legal reason why a different and longer statute of limitation should apply to plaintiff’s claim in the case where the Union breached its duty of fair representation by declining to process plaintiff’s grievances or conspiring with the employer not to process it, than in the case where the Union breached its duty of fair representation by bungling, in arbitration, plaintiff’s grievance. See Taylor v. Ford and Local Union 980, 761 F.2d 931, (3rd Cir.1985); Scott v. Local 863, 725 F.2d 226, 229 (3d Cir.1984). Second, the existence of federal statute of limitations indicates that Congress intended to balance the employees’ interest of recovering that which is due them with the federal interest of a rapid resolution of labor disputes. 462 U.S. at 168, 103 S.Ct. at 2292. Such a Congressional mandate should be followed where it exists. Third, in DelCostello, the Court registered its dissatisfaction with application of “different limitations for the two halves of a § 301/fair representation suit.” 462 U.S. at 169 n. 19, 103 S.Ct. at 2293 n. 19. In the present case, only the application of the federal statute of limitations would give consistent results with respect to plaintiff’s claims against the Union and those against the employers. Consequently, the federal statute of limitations is the appropriate statute.

With respect to plaintiff’s Counts I, II, and III, plaintiff asserts that the appropriate statute of limitations is Pennsylvania’s

6-year statute for actions for breach of an express contract or the Commonwealth’s 4-year statute for actions for breach of implied contracts. Plaintiff attempts to distinguish DelCostello, which applied the federal statute of limitations instead of the state statutes of limitations for actions for breach of contract, on the following three grounds. (1) Plaintiff alleges that, not only did employer breach the collective bargaining agreement, the Union also breached the agreement. (2) Plaintiff, unlike the union members jn DelCostello, alleges a breach of an implied contract as a result of plaintiff’s discharge without just and reasonable cause. (3) Plaintiff, unlike the union members in DelCostello, alleges that the defendants totally prevented plaintiff from participating in the grievance procedure.

The court finds, however, that plaintiff’s asserted distinctions between DelCostello and the present case are without legal significance for the same reasons set forth above where the court held that DelCostello controls the disposition of Count IV. See Taylor v. Ford and Local Union 980, 761 F.2d 931 (3d Cir.1985). See also Aiello v. Apex Marine Corporation, No. 83-3240, slip op. at 24-29 (E.D.Pa. May 13, 1985), supplemented No. 83-3240 (E.D.Pa. May 22,1985) (Scirica, J.).

Having concluded that the federal 6-month statute of limitations applies in the present case, the court turns to the application of that statute. The statute of limitations under 29 U.S.C. § 160(b) begins to rule at the time of the act of the unfair labor practice. In the present case, the statute would begin on the date on which the Union refused to process the grievance. The Union refused to process the grievance in a February 21, 1984 letter to plaintiff and in an April 2, 1984 letter to plaintiff’s counsel. If the statute began to run on April 2, 1984, plaintiff’s complaint was not filed, within 6 months of that date. See Taylor v. Ford, 761 F.2d 931 (3d Cir.1985).

Plaintiff argues that the statute tolled when, on February 5, 1984, plaintiff applied for Commonwealth of Pennsylvania Unemployment Compensation Benefits. Plaintiffs application was denied by the Office of Employment Security to the Unemployment Board of Review, and he subsequently appealed. Following an April 6, 1984 hearing before a referee, the decision of the Office of Employment Security was affirmed and plaintiffs application for compensation was disallowed on April 11, 1984. The court holds: (1) the Commonwealth’s Unemployment Compensation Act is independent of the Federal Labor-Management Relations Act, and, therefore, the filing of a claim under one Act did not toll the statute of limitations applicable to the other, see Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) (filing of a claim with the EEOC did not toll the running of the statute of limitations applicable to the Civil Rights Act of 1866, 42 U.S.C. § 1981), and (2) even if the federal statute was tolled by plaintiff’s filing of the Commonwealth unemployment compensation claim until April 11, 1984, when plaintiff’s application was disallowed, plaintiff’s complaint was still not filed until more than six months after April 11, 1984.

CONCLUSION

Plaintiff’s claim against the Union and the employers must be denied.

      . Title 29 U.S.C. § 185 provides in pertinent part:
      Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

      . Flowers v. Local 2602 of United Steel. Workers, 671 F.2d 87 (2d Cir.1982).

      . DelCostello v. International Brotherhood of Teamsters, et al., 679 F.2d 879 (4th Cir.1982) (mem.).

      . The Act provides:
      That the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.
      Rev.Stat. § 721, 1 Stat. 92 (1789).


text:
    Mai QUACH v. Albert A. FILIAGGI, Jr.
    Civ. A. No. 83-5030.
    United States District Court, E.D. Pennsylvania.
    May 28, 1985.

      Thomas J. Mallon, Freehold, N.J., Neil Hoffman, Philadelphia, Pa., for plaintiff.
    John McNamara, Philadelphia, Pa., for defendant.
   MEMORANDUM AND ORDER

BECHTLE, District Judge.

Presently before the court is plaintiffs motion to mold the verdict so as to award her $1,500.00 prejudgment interest. For the reasons stated herein, the court will grant, in part, plaintiffs motion and will enter judgment in favor of plaintiff and against defendant in the amount of $953.42.

FACTS

This diversity action was commenced in the United States District Court for the Central District of California on April 5, 1983, and was transferred 196 days later to the United States District Court for the Eastern District of Pennsylvania on October 17, 1983. On March 14, 1984, 149 days later, the case was dismissed for lack of prosecution. On November 20, 1984, the court’s Order dismissing the action for lack of prosecution was vacated, and the action reinstated. One hundred six (106) days later, on March 6, 1975, an arbitration panel ruled in favor of defendant and against plaintiff. Plaintiff appealed the arbitration award on April 5, 1985, and 13 days later, on April 18, 1985, the court held that defendant was liable to plaintiff in the amount of $7,500.00.

DISCUSSION

Prejudgment interest delay damages are authorized by Pennsylvania Rule of Civil Procedure 238 (“Rule 238”). Rule 238 provides in pertinent part:

(a) ... in an action seeking monetary relief for bodily injury, death, or property damage, or any combination thereof, the court ... shall (1) add to the amount of compensatory damages ... in the court’s decision in a nonjury trial, damages for delay at ten (10) percent per annum, not compounded, which shall become part of the ... decision; (2) compute the damages for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the ... decision.
(e) ... damages for delay shall be added to the ... decision against all defendants found liable, no matter when joined in the action.

42 Pa.Cons.Stat.Ann. § 238.

Plaintiff seeks to recover prejudgment interest calculated from the date on which the action was filed in the Central District of California until the date on which judgment was entered by this court. Defendant argues that prejudgment interest should only be awarded for the following time periods: from the date on which the case was docketed in the Eastern District of Pennsylvania until it was dismissed for lack of prosecution, from the date on which the suit was reinstated until the date of arbitration award, and the date of plaintiff’s appeal to the date on which judgment was entered. In other words, defendant argues that prejudgment interest should not be awarded (1) before the lawsuit was first docketed in this jurisdiction, (2) during that period of time following the initial dismissal of this lawsuit until its reinstatement, and (3) during that period following the entry of the arbitration award in defendant’s favor and the docketing of plaintiff’s appeal.

The purpose of Rule 238 in “placing damages for delay against a defendant who does not extend a reasonable offer is to reduce congestion by encouraging early settlements.” Barris v. Bob’s Drag Chutes & Safety Equipment, 717 F.2d 52, 56 (3d Cir.1983), quoting Salat v. Western Pennsylvania Hospital, 13 Pa.D. & C.3d 82, 85 (1982) (Allegheny County, Wettick, J.). Prejudgment delay damages will not be awarded, however, where defendant ultimately prevails. Rule 238, therefore, is intended to prompt defendants to make settlement offers whenever the outcome of the case is “reasonably in doubt.” 717 F.2d at 56.

During the period of time following the initial dismissal of this lawsuit until its reinstatement and during the period following the entry of the arbitration award in defendant’s favor and the docketing of the plaintiff’s appeal, the outcome of the case was not “reasonably in doubt.” At those times, defendant had no incentive to offer to settle the action. The purpose of Rule 238 would not be furthered if the rule were applied. As a result, no prejudgment interest damages are available during these periods. See Id.

On the other hand, between the time this lawsuit was filed in the Central District of California and the time it was docketed here, defendant does not, in his response to plaintiff’s present motion, dispute that the outcome was reasonably in doubt and defendant did have an incentive to initiate settlement. Defendant argues, instead, that Rule 238 should not apply prior to the time when the suit was docketed in the Eastern District of Pennsylvania. The court disagrees.

The time runs under the literal reading of Rule 238(c) from when plaintiff files his initial complaint against even defendants who are not joined as defendants in the initial complaint but who are joined in an amended complaint. Rule 238 is intended to prompt settlement offers after the filing of the initial complaint even by persons who are merely potential defendants. Similarly, the court believes it is likely that the Pennsylvania legislature also intended that Rule 238 operate broadly to promote settlement offers by defendants named in a lawsuit in the Central District of California who became defendants in the same lawsuit transferred to the Eastern District of Pennsylvania.

CONCLUSION

Accordingly, the court will award plaintiff prejudgment interest from the filing of the initial complaint in California until the lawsuit was dismissed for lack of prosecution, from the date on which the lawsuit was reinstated until the entry of the arbitration award, and from the date on which plaintiff’s appeal from the arbitration award was docketed until the entry of the district court’s judgment. Delay damages, which will be awarded with respect to this 464 day time period, will be $953.42.

An Appropriate Order will be entered.

      . As a condition of reinstatement, the court assessed against plaintiff defendant’s costs. This award to defendant was not damages for delay.


author: GENE CARTER, District Judge.

text:
    UNITED STATES of America, v. Raymond Luc LEVASSEUR.
    Crim. No. 76-36 SD.
    United States District Court, D. Maine.
    May 28, 1985.

      James R. Bushell, Downeast Law Offices, Portland, Me., Lewis S. Gurwitz, Winthrop, Mass., for plaintiff.
    Richard S. Cohen, U.S. Atty., F. Mark Terison, Asst. U.S. Atty., Portland, Me., for defendant.
   MEMORANDUM AND ORDER ON GOVERNMENT’S MOTION TO DISMISS DEFENDANT LEVASSEUR'S MOTION TO SUPPRESS AS MOOT AND DENY DEFENDANT LEVASSEUR’S MOTION FOR RETURN OF SEIZED PROPERTY

GENE CARTER, District Judge.

Defendant, Raymond Luc Levasseur, in the above-entitled matter has previously filed a motion to suppress under Fed.R. Crim.P. 12 and for the return of property under Fed.R.Crim.P. 41(e). This motion deals with material seized pursuant to warrant from the premises at 1903 State Route 225 in Deerfield, Ohio. Defendant has also filed a motion under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) for an evidentiary hearing with respect to alleged factual errors contained in the affidavit supporting the application for the search warrant in question. The Court, in its bench ruling of May 23, 1985, granted the Defendant’s request for an evidentiary hearing pursuant to Franks v. Delaware, supra. The Court had scheduled before it this morning the Franks hearing with respect to the alleged errors in the warrant affidavit and oral argument upon the Defendant’s Motion to Suppress and For Return of Property.

This morning, the Government filed a notice, pursuant to Fed.R.Crim.P. 12(d)(1), that it will not utilize in its case-in-chief at trial any evidence seized at the premises at 1903 State Route 225 in Deerfield, Ohio as the result of the execution of the search warrant in question. Additionally, the Government has filed its motion to dismiss the Defendant Levasseur’s Motion to Suppress such evidence as moot. That motion also requests the denial of the Defendant’s Motion for Return of the Seized Property.

I.

The Government has represented to the Court in oral argument that it will not utilize or offer in evidence as part of its case-in-chief in this case or in Criminal No. 77-15 SD any evidence or testimony derived directly or indirectly from the circumstances attendant upon the execution of the search warrant in question at the premises described in Deerfield, Ohio. On the basis of that representation, it is clear that there remains no justiciable issue pending before this Court on those parts of the Defendant’s motions which seek an order of this Court suppressing the use of such evidence in the course of the trial of this matter. The suppression aspects of the motions have in fact become moot by virtue of the Government’s notice and representation to the Court. On the basis of such representation, the Court will preclude the Government from the utilization of such evidence and testimony in the course of its case-in-chief in this case and in Criminal No. 77-15 SD, further buttressing the conclusion that the suppression aspects of the Defendant’s motions are in fact moot. Accordingly, the Defendant’s motions, to the extent that they seek an order of this Court suppressing such evidence and testimony in the course of the Government’s case-in-chief in this matter will be dismissed for mootness.

Under the Federal Rules of Criminal Procedure, this Court is not the proper forum for the hearing of either Defendant’s suppression motion or his motion for return of property. Fed.R.Crim.P. 41(f) provides that “[a] motion to suppress evidence may be made in the court of the district of trial as provided in Rule 12.” The Advisory Committee Notes explain that subsection (f) reflects the position that it is best to have the motion to suppress made in the court of the district of trial rather than in the court of the district in which the seizure occurred. The Court construes this language to mean that the motion should be brought in the court of the district of the trial in which the evidence will be presented. As is made clear by the representation of the United States Attorney, that is not the case here. The Court finds, therefore, that its entertainment of Defendant’s Motion to Suppress is outside the contemplation of Rule 41.

Defendant’s motion also seeks the return of the seized property. Rule 41(e) provides that “[i]f a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12.” The rationale for this sentence is set forth in the Advisory Committee Notes to the 1972 Amendment: “This change is intended to further the objective of rule 12 which is to have all pretrial motions disposed of in a single court appearance rather than to have a series of pretrial motions made on different dates, causing undue delay in administration.” Because the Court has found this forum to be inappropriate for Defendant’s suppression motion, on the facts as they now exist, the Court also finds that the motion for return of property should not be heard here. That motion should go forward with the suppression motion, if one is brought in another jurisdiction. See Imperial Distributors, Inc. v. United States, 473 F.Supp. 294, 296 (D.Mass.1979). Alternatively, if no other suppression motion is brought, the Defendant, under the provisions of Rule 41(e), will have recourse in the district in which the property was seized. Id.

Defendant opposes the Government’s Motion to Dismiss because the Government has indicated its intent to introduce evidence seized in the Ohio search in prosecutions against Defendant pending in the Eastern District of New York. The Defendant anticipates that a ruling by this Court on his Motion to Suppress would collaterally estop relitigation of the issue in other prosecutions. It is possible that a ruling by this Court would be accorded preclusive effect in another district. See Mayo v. United States, 425 F.Supp. 119 (E.D.Ill.1977). This Court nevertheless declines to decide an issue in which one of the parties before it professes no interest. The speculative possibility that the ruling will be decisive in a future case does not change the fact that the issue is moot in any case pending in this District. The Court’s determination is reinforced by the fact that the Defendant will have the opportunity to litigate the issue in the forum in which it is proposed to use the property as evidence.

II.

For the foregoing reasons, Defendant Levasseur’s Motion to Suppress and For Return of Evidence, filed on March 1, 1985, is hereby DISMISSED without prejudice to its reassertion in the United States District Court for the Northern District of Ohio or of any District where the Government proposes to use against Defendant at trial any evidence seized pursuant to the subject search warrant.

At oral argument defense counsel has made a motion for sanctions, on various bases, against the Government. The Court has not had the benefit of any briefing on that motion and has had no time to conduct research of its own in respect to it. The Court is fully satisfied that it would be ill-advised to precipitately decide the issues so recently raised. Accordingly, the oral motion is DENIED without prejudice to its renewal and briefing in written form in conformity with Local Rule 19(a). If such filings occur within ten days of this Memorandum and Order, the Court will consider the appropriate action thereon in due course; otherwise, those issues will be deemed to be waived.

So ORDERED.

      . Defendant has been indicted in this district for two different bank robberies. Only Criminal No. 76-36 SD is currently being prosecuted by the Government. The Government, however, has represented that it will not utilize evidence from the search in any trial of the other case, Criminal No. 77-15 SD.