author: ATKINS, District Judge.

text:
    Silvia BRONS, Personal Representative of the Estate of Stanley Brons, Deceased, Plaintiff, v. BEECH AIRCRAFT CORPORATION, et al., Defendants.
    No. 84-1776-Civ.
    United States District Court, S.D. Florida.
    Nov. 27, 1985.
    Calvin F. David, Thornton, David & Murray, P.A., Miami, Fla., for Beech Aircraft.
    Robert L. Park, Sam Brodnax, Smathers & Thompson, Miami, Fla., for Sylvia Brons & Stanley Brons, decedent.
    Peter Wildman, McDonald & McDonald, Miami, Fla., for Airmanship, Inc.
    Thomas J. Caldwell, Barkas & Caldwell, Miami, Fla., for Hertzog Aviation.
    Howard Barwick, Barwick & Dillian, P.A., Miami Shores, Fla., James Blecke, Miami, Fla., for Executive Flight.
    Richard R. McCormack, James S. Usich, Usich & Sullivan, Miami, Fla., for Lucille & John B. Tasso (John, decedent).
   ORDER GRANTING SUMMARY JUDGMENT

ATKINS, District Judge.

THIS CAUSE is before the Court on the issue of whether plaintiff may maintain an action under Florida’s Wrongful Death Act. Defendant Beech Aircraft asserts that the action is controlled exclusively by the Death on the High Seas Act, 46 U.S.C. § 761 et seq. In addition, Defendant Hart-zog has moved for summary judgment based on the affidavit of Virgil Smith and Donald Pond.

1. Defendant Hartzog’s Motion:
Rule 56 provides:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Fed.R.Civ.P. 56. In this case, defendant Hartzog has moved for summary judgment and has supported the motion with an affidavit by Virgil Smith and Donald Pond. No response has been filed. The motion, memorandum, and supporting materials indicate that Hartzog should not be a party in this action.

2. The Governing Law of This Claim:

The critical facts can be stated briefly. Plaintiffs decedent, Stanley Anton Brons, and John Tasso, decedent of Cross-Plaintiff Lucille L. Tasso, were killed in an airplane crash which occurred between 4.35 and 4.5 nautical miles from the Florida shoreline. The aircraft crashed off the coast of Fort Myers during a flight which began and was to end in Florida.

Unlike the simple statement of facts, the relevant case law is complex and appears to be in conflict on certain points. Between the various parties, it has been argued that the Florida Wrongful Death Act is the exclusive remedy, that the Death on the High Seas Act (“DOHSA”) provides the exclusive remedy, and that concurrent jurisdiction exists under the respective statutes. Because of the apparent confusion in the case law, the Court has carefully reviewed the major cases in rendering this opinion.

A. Florida’s Territorial Waters

Plaintiff asserts that Florida law applies because the airplane accident occurred within Florida’s territorial waters. While the accident occurred more than one marine league from the Florida shoreline, by adoption of its Constitution of 1868, Florida expanded its boundaries from one marine league to three marine leagues from the shoreline into the Gulf of Mexico. The present version of Florida’s Constitution maintains this boundary. Therefore, plaintiff argues, Florida’s territorial waters extend approximately nine nautical miles into the Gulf of Mexico.

Florida’s territorial limits are significant because section 1 of DOHSA is limited by section 7 which provides:

The provisions of any state statute giving or regulating rights of action or remedies for death shall not be affected by this chapter. Nor shall this chapter apply to the Great Lakes or to any water within the territorial limits of any state, or to any navigable waters in the Panama Canal Zone.

46 U.S.C. § 767. Thus, the language of the statute indicates that DOHSA should not interfere with substantive state law remedies.

Based on Florida’s Constitution and the wording of section 7, plaintiff’s argument seems plausible; however, courts have consistently rejected it. See Chute v. United States, 466 F.Supp. 61 (D.Mass.1978); Hooker v. Raytheon Co., 212 F.Supp. 687 (S.D.Cal.1962). In Hooker, the parties stipulated that the vessel sank in the Santa Barbara channel more than one marine league from either the California shoreline or the closest channel island. Everyone on the ship died in the accident. The California Constitution and subsequent statutes placed “all of the ocean area of the Santa Barbara channel within the boundaries of the State of California.” Id., 212 F.Supp. at 688, 690. Nevertheless, the court concluded:

the deaths involved were on the high seas within the terms and provisions of the Death on the High Seas Act and that the waters of the Santa Barbara channel, between a belt one marine league in width from the shore of the mainland and a belt of the same width around each island, are not territorial waters of the State of California within the purview of said Act....

Id., 212 F.Supp. at 694.

In Chute, the United States was found liable for the wrongful deaths of guests on a yacht which sank in Nantucket Sound when it struck the wreck of a navy ship. Massachusetts had established marine boundaries which included all of the sound. Yet, the court held:

that the waters of Nantucket Sound beyond a marine league from either the shore of mainland Massachusetts (or Cape Cod) and the offshore islands are not territorial waters of Massachusetts for DOHSA purposes.

Id., 466 F.Supp. at 65 (footnote omitted). The court’s holding was based on its examination of the traditional rules and national acts which determine proper marine boundaries of a staté, and its examination of the legislative history of DOHSA.

The present case is very similar to Chute and Hooker. Plaintiff has not formulated a persuasive reason to abandon existing precedent. Therefore, the court holds that the waters of the Gulf of Mexico beyond a marine league from the Florida shoreline are not territorial waters of Florida for the purpose of precluding a DOHSA action. This result best effectuates congression intent.

B. The Two-Prong Test of Executive Jet

The proper application of the two-prong test of Executive Jet for DOHSA actions involving airplane accidents on the high seas is troublesome. The courts’ holdings have often been in conflict. However, a recent Eleventh Circuit decision strongly suggests that even in DOHSA actions the two-prong test must be satisfied.

In Teachey v. United States, 363 F.Supp. 1197 (M.D.Fla.1973), the court dismissed a complaint without prejudice and with leave to file an amended complaint. The suit was based on a helicopter accident just off the coast of St. Petersburg. For guidance in drafting the amended complaint, the court stated:

the complaint must be dismissed. However, the plaintiffs are certainly not foreclosed from proceeding on the merits. They may proceed under the Death on the High Seas Act if the crash occurred more than one marine league from shore_

Id., 363 F.Supp. at 1199.

The court reached a different conclusion in Hayden v. Krusling, 531 F.Supp. 468 (N.D.Fla.1982). In Hayden, plaintiff’s decedent was a passenger in a light aircraft flying round-trip from Pensacola, Florida, to New Orleans, Louisiana. During the return flight, the plane crashed into the Gulf of Mexico. It disappeared from the radar screen when it was 55 miles south of the northern shoreline of the Gulf of Mexico. Id., 531 F.Supp. at 469.

Based on these facts, the court examined Florida’s Wrongful Death Act and DOHSA to determine which statute controlled the action. The court concluded that “Florida’s Wrongful Death statute is broad enough to encompass a death upon the high seas.” Id. As to DOHSA, the court found that there was no significant relationship to traditional maritime activity as required by Executive Jet. Therefore, “plaintiff here has no cause of action arising from a maritime tort, no cause of action cognizable in admiralty, and no cause of action under DOHSA.” Id., 531 F.Supp. at 469-70.

Recently, the Eleventh Circuit reviewed the significance of Executive Jet in DOHSA actions. In Miller v. United States, 725 F.2d 1311 (11th Cir.), cert. denied, — U.S. -, 105 S.Ct. 94, 83 L.Ed.2d 40 (1984), the court considered a similar situation. In Miller, two men were killed while flying a private plane from the Bahamas to Palm Beach, Florida. The plane crashed forty miles southeast of West Palm Beach. The court stated that the issue was one of first impression in this circuit:

the sole issue for resolution is whether land-based negligence resulting in an airplane crash into international waters is within admiralty jurisdiction.

Id., 725 F.2d at 1312.

In resolving this issue, the court began with an examination of Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). Most significantly the Miller court stated:

The Supreme Court added a caveat to its holding on the specific facts of Executive Jet, stating in the now famous footnote 20:
'Of course, under the Death on the High Seas Act, a wrongful death action arising out of an airplane crash on the high seas beyond a marine league from the shore of a state may clearly be brought in a federal admiralty court.’ Executive Jet, 409 U.S. at 271, n. 20, 93 S.Ct. at 506, n. 20 (emphasis added).
The specific significance of footnote 20, and the issue of when an alleged aviation tort bears a significant relationship to traditional maritime activity, has not yet been addressed by the Eleventh Circuit.

Id., 725 F.2d at 1313-14. The court then examined the ease law from other circuits and concluded that admiralty jurisdiction was proper. Miller embraces the rationale of the Ninth and Fifth Circuits in suggesting that both prongs of Executive Jet must be satisfied. In fact, the court specifically noted that “a significant relationship to traditional maritime activity [existed] because the trip between the Bahamas and the United States has traditionally been accomplished by ship_” Id., 725 F.2d at 1315.

The rationale of Miller must be applied to the facts of this case. Here, the flight bore no relationship to traditional maritime activity. The trip was related to flight instruction. In fact, the sole purpose of the flight was to learn how to fly an aircraft — a function having no direct relationship to maritime activity. The training flight originated in Florida, stopped only in Florida cities, and was to conclude in Florida. The location of the accident was totally fortuitous. Thus, the facts of the cases simply do not support the application of admiralty jurisdiction and maritime law.

C. Concurrent Jurisdiction

In Alexander v. United Technologies Corp., 548 F.Supp. 139 (D.Conn.1982), the court found that DOHSA was not the exclusive remedy for an aircraft accident on the high seas. Instead, the court held that concurrent jurisdiction existed between the state wrongful death action and the federal DOHSA action. However, Alexander was decided by a Connecticut district court pri- or to Miller. Based on Miller’s rationale, concurrent jurisdiction cannot exist when the flight has no relationship to traditional maritime activity.

For the reasons expressed in this opinion, it is

ORDERED AND ADJUDGED that the motion of defendant, Hartzog Aviation, Inc., for summary judgment is GRANTED. It is FURTHER ORDERED that defendant Beech’s motion for summary judgment is DENIED and plaintiff’s motion is GRANTED. Thus, plaintiff may maintain an action under Florida’s Wrongful Death Act.

      . A marine league is approximately equal to the distance of three (3) nautical miles, so the crash occurred more than one marine league from the coast.


source: Caselaw Access Project

author: MUECKE, District Judge.

license: Public Domain

text:
    In re ARIZONA DAIRY PRODUCTS LITIGATION. This Document Relates To: STATE OF ARIZONA, Plaintiff, v. SHAMROCK FOODS COMPANY, an Arizona corporation; et al., Defendants. Darryll J. WALTON, et al., Plaintiffs, v. SHAMROCK FOODS COMPANY, an Arizona corporation; et al., Defendants.
    Nos. CIV 74-569A PHX-CAM, CIV 74-594 PHX CAM and CIV 74-736 PHX CAM.
    United States District Court, D. Arizona.
    Dec. 3, 1985.

      David L. White and Don G. Kessler, Jennings Strouss & Salmon, Phoenix, Ariz., for defendants.
    Timothy J. Burke, Fennemore Craig Vo-nammon & Udall, Phoenix, Ariz., for Beatrice Food Co.
    Steven D. Copple, Black Robertshaw Copple & Pozgay, Phoenix, Ariz., for Food Giant Super Markets, Inc.
    J. Michael Hennigan, Greenberg Henni-gan & Mercer, Beverly Hills, Cal., for plaintiffs.
   MUECKE, District Judge.

Having received and considered Defendant Shamrock Foods Company’s Motion to Dismiss, filed September 24, 1985; Defendant Beatrice Companies’ Joinder in Defendants’ Motion to Dismiss, filed October 9, 1985; Defendant A.J. Bayless Markets, Inc.’s Joinder in Defendants’ Motion to Dismiss and Joinder in Defendant Beatrice Companies’ Joinder in Defendants’ Motion to Dismiss, filed October 22, 1985; Plaintiffs’ Opposition to Defendants’ Motion to Dismiss, filed November 8, 1985; Reply Memorandum of Beatrice Companies In Support of Motion to Dismiss Claims for Purchases from Non-Defendant Retailers, filed November 15, 1985; Shamrock Defendants’ Memorandum in Reply to Plaintiffs’ Opposition to Defendants’ Motion to Dismiss, filed November 15,1985; and having heard oral argument by counsel, this Court finds and concludes as follows:

By these motions, defendants seek to dismiss the portion of the plaintiffs’ complaints seeking damages sought in connection with direct purchases from other than alleged participants in a retail-level conspiracy who are presently named defendants. In their complaints, plaintiffs allege:

Various corporations, firms and individuals both named and not named as defendants in this complaint participated as co-conspirators in the violations alleged and performed acts and made statements in furtherance thereof.

¶ 10 of Consumer Class Fourth Amended Complaint, filed April 8,1985; If 10 of State of Arizona Fifth Amended Complaint, filed April 8, 1985.

Plaintiffs have alleged a conspiracy between “virtually every [milk] retailer in the state” of Arizona, as well as various wholesale vendors, to fix the retail prices of milk. This conspiracy is alleged to have occurred on a retail level only, although plaintiffs had previously alleged a wholesale level conspiracy. Although the allegations in the complaints include claims against many participants in the alleged conspiracy, plaintiffs have named only a portion of them as defendants.

In essence, defendants request that this Court dismiss all damage claims against them based upon sales made by non-conspirator competitors and un-named conspirators. They argue that such claims are speculative and amount to an “umbrella” theory of relief, which has been previously rejected by other courts. They rely upon several authorities for their contentions, including Mid-West Paper Products Co. v. Continental Group, 596 F.2d 573 (3rd Cir.1979) (“Mid-West”); In re Coordinated Pretrial Proceedings In Petroleum Products Antitrust Litigation, 691 F.2d 1335 (9th Cir.1982) (“Petroleum"), and Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977).

First, in regard to the claims related to sales made by non-conspirators (i.e. retail competitors who were not participants in the alleged conspiracy), defendants argue that Mid-West and Petroleum bar these allegations of an “umbrella” theory of relief. They argue that the “umbrella” concept presented here is much like the claim in Petroleum, supra, 691 F.2d, at 1338-39:

Plaintiffs contend that defendants’ successful price-fixing conspiracy created a “price umbrella” under which non-conspiring competitors of the defendants raised their gasoline prices to an artificial level at or near the fixed price. Since defendants are allegedly responsible for creating a market situation where conduct of this nature is possible, plaintiffs argue that defendants should be held responsible for damages resulting from their competitors’ higher prices.

The conspiracy at issue has been alleged to have involved price-fixing on a retail level only. On a previous appeal in this matter, the Ninth Circuit noted the following:

Whether allegations of a retail price-fixing conspiracy such as the one alleged by the consumers would avoid the bar of Illinois Brick was expressly reserved by this circuit in In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 691 F.2d 1335, 1341 n. 9 (9th Cir.1982).

Arizona v. Shamrock Foods Company, 729 F.2d 1208, 1212 (9th Cir.1984). This Court has not been directed to a recent decision by the Ninth Circuit addressing this issue. While there is no controlling authority in this circuit, defendants rely upon the reasoning of Mid-West, claiming it to be dispositive of the claims presented. There, the Third Circuit was faced with a contention similar to that considered herein:

Murray [plaintiff] advances the theory that it may sue for treble damages because of injuries it suffered as a direct purchaser of consumer bags from competitors of the defendants, who allegedly were able to charge artificially inflated prices as a consequence of defendants’ price-fixing.

Id., 596 F.2d, at 580. The Court went on to point out:

The question whether Murray’s injury should be legally attributable to the defendants depends in some measure on whether and how accurately Murray’s alleged injury is economically traceable to the defendants. That issue in turn parallels the pass-on issue raised in Illinois Brick because in both situations the plaintiff seeks to recover for higher prices set by, and paid by it to, parties other than the defendants. And the rationale underlying Illinois Brick — that it would be almost impossible, and at the very least unwieldy, to attempt to trace the incidence of the anticompetitive effect of defendants’ conduct — bears even greater truth in the context of a purchaser from a competitor of the defendants.

Id., at 584.

The Court found that the purchaser had no standing to sue the defendants under § 4 of the Clayton Act, 15 U.S.C.A. § 15, for damages arising sales by the competitors.

A district court in this circuit has found to the contrary. In State of Washington v. American Pipe and Construction Co., 280 F.Supp. 802 (W.D.Wash.1968), the court was presented with the following situation:

Plaintiffs are also seeking compensation from American for allegedly excessive payments made on purchases from non-conspiratorial manufacturers. Plaintiffs assert that the alleged conspiracy raised the general price level in the market, and that non-conspirators sold their product under this umbrella at higher prices than would have prevailed absent the illegal activity. American contends such claims are too remote and unrelated to the alleged violation to support a cause of action under § 4 of the Clayton Act.

Id., at 805. Upon finding that a fact question existed as to the cause of plaintiffs’ injury, the court stated:

If plaintiffs can establish as a matter of fact (1) that they paid more for pipe purchased from non-defendant non-conspirators than would have been paid absent the alleged conspiracy, and (2) that American’s alleged participation in an anticompetitive conspiracy was the cause of such over-payment, nothing in the law will preclude recovery from American. Plaintiffs’ ability to prove such facts is for the jury to decide, not this court.

Id., at 807.

At the hearing on this matter, this Court mentioned a theory quite similar to that stated above which allows recovery, although it did not make specific reference to the State of Washington decision. A review of the reasoning in that case lends further support for the view espoused by this Court at the November 22, 1985 hearing. As such, this Court will follow this line of reasoning in State of Washington, supra, and as discussed at the hearing and will allow the claims against non-conspirator non-defendants, provided plaintiffs can meet the standards set forth in State of Washington. See also Dolphin Tours Inc. v. Pacifico Creative Service, 773 F.2d 1506 (9th Cir.1985) (dealing with causation under § 4 claims). Such claims may be properly made in accordance with Rule 15, Federal Rules of Civil Procedure. Upon such a showing, the jury could then determine whether the plaintiffs have been injured by the defendants’ alleged anticompetitive activity and the amount of injury incurred.

Should the plaintiffs fail to meet the causation requirements as to these parties, defendants may then move to dismiss the claims at that time. As such, this Court will deny the motions to dismiss in regard to the non-conspirator non-defendants without prejudice.

Second, defendants seek to dismiss any un-named conspirators who are alleged to have participated in the fixing of retail milk prices. They eite to this Court’s Order of July 26, 1982, where the parties were to add the grocery stores as defendants to this action. They argue that the Order precludes any subsequent claims of co-conspirators. Defendants also contend that these claims are barred under Mid-West, supra, and Petroleum, supra. In regard to the preclusive effect of this Court’s previous Orders, several points should be noted. First, plaintiffs are not seeking damages from the un-named conspirators but rather from the named-defendants based upon sales by the un-named conspirators. It is undisputed that any participants involved in the alleged conspiracy are jointly and severally liable with no right to contribution. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981). Accordingly, the failure to include a portion of the conspirators does not preclude recovery of all the damages incurred from the named defendants.

Notwithstanding the above, the plaintiffs retain the burden of proving that a conspiracy existed between the named-defendants and the un-named co-conspirators. Although this burden may be met by inference, see Esco Corporation v. United States, 340 F.2d 1000, 1007 (9th Cir.1965) (citing Daily v. United States, 282 F.2d 818 (9th Cir.1960), the United States Supreme Court has stated:

Although following industry leaders may help support an inference of agreement, “this Court has never held that proof of parallel business behavior [by itself] conclusively establishes agreement or, phrased differently, that such behavior itself constitutes a Sherman Act offense.” Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 541, 74 S.Ct. 257, 259, 98 L.Ed. 273 (1954).

Texas Industries, Inc. v. Radcliff Materials, Inc., supra, 101 S.Ct., at 2065 n. 9.

Further, should plaintiffs prove unable to prove the existence of a conspiracy which included un-named parties, the claims may then be presented as claims regarding non-conspirator competitors discussed above.

In regard to defendants’ contention that Mid-West and Petroleum apply to claims against co-conspirators, a review of those decisions reveals the contrary. The Courts in Mid-West and Petroleum were faced by a different inquiry: Whether damages could be collected from the defendants based upon sales by non-conspiring competitors. As mentioned above, plaintiffs have alleged that “virtually every retailer in the state was involved at one time or another.” Although plaintiffs are unable to provide authority for the proposition that claims for sales made by un-named co-conspirators are not precluded, defendants’ citation to Mid-West and Petroleum does not dispose of the issue presented to this Court.

Finally, in reviewing these motions to dismiss, this court must construe the complaint in favor of the pleader, Amfac Mortgage Corp. v. Arizona Mall of Tempe, Inc., 583 F.2d 426 (9th Cir.1978); Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir.1977), and resolve doubts in favor of the pleader. Williams v. Gorton, 529 F.2d 668, 672 (9th Cir.1976).

If plaintiff is able to prove that unnamed participants engaged in a conspiracy with the named defendants to set retail prices of milk, it would appear that plaintiffs are entitled to recover damages from the defendants in regard to sales by those un-named conspirators. Nevertheless, it should be noted that neither party has presented authority on the issue of the requisite proof necessary to obtain relief under such a claim.

Accordingly, based upon the above, as well as all the reasons set forth by the plaintiffs, the motions will be denied.

Based upon the foregoing,

IT IS ORDERED that Defendant Shamrock Foods Companys’ Motion to Dismiss, filed September 24, 1985; Defendant Beatrice Companies’ Joinder in Defendants’ Motion to Dismiss, filed October 9, 1985, and Defendant A.J. Bayless Markets, Inc.’s Joinder in Defendant Beatrice Companies’ Joinder in Defendants’ Motion to Dismiss, filed October 22, 1985, are denied.


author: PENCE, Senior District Judge.

text:
    HAWAII CARPENTERS’ TRUST FUNDS (Health & Welfare Trust Fund by its Trustees, Raymond Nagata, Albert Hamamoto, Henry Iida, Roy Iwamoto, Robert Kaya, Fred Shelton, Harold Makilan, Herman Nascimento, Lester Tamura, and Mitsuo Yakuma), et al., Plaintiffs, v. WAIOLA CARPENTER SHOP, INC. a Hawaii corporation, and Tanaka and Uyehara, Inc., a Hawaii corporation, now doing business as Waiola Countertop, formerly doing business as Waiola Carpenter Shop, Defendants.
    Civ. No. 83-0253.
    United States District Court, D. Hawaii.
    Dec. 5, 1985.

      Joseph A. Kinoshita, Ashley K. Ikeda, Wesley H. Ikeda, Honolulu, Hawaii, for plaintiffs.
    Gregory Sato, Honolulu, Hawaii, for defendants.
   ORDER GRANTING DEFENDANT TA-NAKA AND UYEHARA, INC.’S MOTION FOR SUMMARY JUDGMENT

PENCE, Senior District Judge.

Defendant’s Motion for Summary Judgment with respect to Counts III and IV came on for hearing before this court on November 6, 1985. The court, having considered the motion and the memoranda submitted in support thereof and in opposition thereto, and having heard the oral arguments of counsel, and being fully advised on the premises herein, finds as follows:

In late 1979, Calvin Tanaka and Duffy Uyehara purchased the assets of Waiola Carpenter Shop, Inc. from their retiring boss, Robert Imai. The transaction can be described as arms-length, as both were represented by counsel. Tanaka and Uyehara funded their corporation with $5,000 purchases of stock and loans of $10,000.

After the change of ownership, Tanaka and Uyehara established credit under the new corporate name (Tanaka & Uyehara, Inc. dba Waiola Carpenter Shop (now Waio-la Countertop)), obtained business and tax licenses with the U.S. and State, and opened banking accounts in the corporation’s name. In his affadavit, Uyehara states that Waiola Carpenter Shop was used solely as a trade name — neither he nor Tanaka made any attempt to cover up the sale or prevent public disclosure. The changeover was effective April 30, 1980.

Tanaka and Uyehara continued to perform fabricating work in the shop, while Thomas Lee was hired to perform Imai’s former duties — delivery of product and pick-up of raw material. Lee was never a member of the union, and was never promised trust fund benefits. Following Lee’s departure from T & U, the company continued to hire non-union help.

After the sale in April, Tanaka & Uye-hara, Inc. (T & U) continued to receive monthly trust fund assessment notices from the Hawaii Carpenters’ Trust Funds. The assessments were based on the 1978 to 1981 Collective Bargaining Agreement between the Union and Robert Imai/ the former owner. At the time Tanaka and Uye-hara negotiated to buy Waiola’s assets, the subject of the Agreement never came up. To Tanaka, “it did not seem important.” T & U’s Memorandum jn Support of Summary Judgment, Affadavit of Duffy Uyehara, at 6. At any rate, from May of 1980 through December of 1981, T & U continued the prior practice of paying trust fund contributions and reporting the hours worked of its employees.

On December 23, 1981, T & U received a letter from the Trust Funds demanding payment of delinquent contributions. In January of 1982, former Carpenters’ Union business agent Eddie Cantera told Uyehara there was no need for T & U to belong to the funds since none of T & U’s employees belonged to the Union. According to Uye-hara, his conversation with an attorney for the trust funds confirmed this as well. As a result, T & U refused to make trust fund contributions or report hours worked beginning January 1982.

During this time, T & U joined the Wood Products Association of Hawaii (WPA). Uyehara states T & U joined the association to help “drum up” business. In July of 1981, Percy Ching, the President of the WPA, asked Uyehara to sign a “Survey Form” (also referred to as a power of attorney). Uyehara completed the form, “mainly out of friendship with Mr. Ching,” and was given the impression that each company would have the option of signing their own agreement. According to plaintiffs, the form gave T & U no such option, but authorized the WPA to negotiate an agreement on T & U’s behalf with the Millwork industry union.

The court notes that at the hearing, it became clear that Percy Ching advised Ta-naka and Uyehara extensively on labor matters. In fact, both parties agreed Mr. Ching may have been practicing law without a license.

The WPA and Carpenters’ Union commenced negotiations in August 1981 to renew the Mill Cabinet Agreement for 1981-84. A dispute arose, resulting in a strike and lawsuit by the Union against the WPA and its members. That suit was eventually dismissed, the strike settled, and an Agreement was entered into February 25, 1983.

On January 14, 1982, T & U withdrew as a member of the WPA. The letter stated that T & U “had previously given the Association our power-of-attorney for bargaining purposes without understanding the total implications of that action.” On the 28th of the same month, both Tanaka and Uyehara resigned from the Carpenters’ Union as well.

Finally, the court notes that in late March of 1983, Carpenters’ Union business agent Melvin Fujii visited T & U with the collective bargaining agreement between the union and the WPA. Due to confusion over exactly which companies were members of the WPA, the union sought individual company signatures. When Duffy Uyehara refused to sign, the business agent left. Several days later, the same sequence of events was repeated when another Carpenters’ Union business agent visited the premises of T & U. Again, Uye-hara refused to sign the agreement. See Supplementary Memo in Support of Summary Judgment, Affadavit of Duffy Uye-hara at 2, Affadavit of Calvin Tanaka at 2.

DISCUSSION

Defendant seeks summary judgment on Counts III and IV. Count III involves obligations to the trust fund under the 1978-81 Collective Bargaining Agreement, while Count IV is addressed to T & U’s obligation to contribute pursuant to the 1981-84 Collective Bargaining Agreement. First, defendant contends that the absence of a written agreement relieves T & U of any obligations to make contributions under the 1978-81 Agreement. Next, defendant argues T & U is not obligated under the 1981-84 Mill Cabinet Agreement since T & U withdrew from the WPA prior to the execution of the agreement. Finally, defendant maintains the applicable state statute of limitations bars plaintiff’s ERISA claims.

Standard of Review

The standard for granting summary judgment is well established. Summary judgment is appropriate only when the pleadings and other submissions show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Filco v. Amana Refrigeration, Inc., 709 F.2d 1257, 1260 (9th Cir.1983).

The 1978-81 Collective Bargaining Agreement

The record reveals no dispute regarding the absence of a written agreement between T & U and the trust funds. Defendants rely on Maxwell v. Lucky Const. Co., Inc., 710 F.2d 1395 (9th Cir.1983), for the proposition that without a written agreement between the trust funds and T & U, T & U is relieved of any obligation to contribute their predecessor may have had vis-a-vis the funds. Maxwell dealt with Section 302 of the LMRA (29 U.S.C. § 186), and noted that under section 302(c)(5), the basis on which an employer is to pay trust contributions must be specified in a written agreement. Since the only written basis for contributions is the 1978-81 Collective Bargaining Agreement, and that was signed by Imai for Waioala Carpenter Shop, Inc., the trust funds are effectively estopped from asserting T & U must contribute to the funds. See Moglia v. Geoghegan, 403 F.2d 110 (2nd Cir.1968), cert. den., 394 U.S. 919, 89 S.Ct. 1193, 22 L.Ed.2d 453 (1969); Thurber v. Western Conference of Teamsters Pension Plan, 542 F.2d 1106 (9th Cir.1976).

To avoid the above line of reasoning, Plaintiffs argue that T & U is Waiola’s successor, and therefore T & U must make trust fund contributions under their predecessor’s collective bargaining agreement. Regarding the Successorship Doctrine, Professor Morris writes that any determination of successorship “turns on a number of related inquiries, all focused upon the degree of continuity between the old and the new employer’s business enterprise.” Developing Labor Law (2nd Ed.1983) at 712-713. These inquiries include the continuity in the employing industry and the continuity in the appropriateness of the bargaining unit.

In Burke v. French Equipment Rental, 498 F.Supp. 94, 98 (C.D.Cal.1980), rev’d in part, aff'd in part, 687 F.2d 307 (9th Cir.1982), the court examined whether an individual who is the sole shareholder, president and only employee of a corporation could be included in a bargaining unit of employees of that corporation. The court wrote, “it is likely that ... French would be excluded, either because he is an employer or a supervisor, ... or because he represents management. See generally NLRB v. Yeshiva University, 444 U.S. 672 [100 S.Ct. 856, 63 L.Ed.2d 115] (1980); Beasley v. Food Fair of North Carolina, Inc., 416 U.S. 653 [94 S.Ct. 2023, 40 L.Ed.2d 443] (1974).” Id. In the instant case therefore, the fact that Tanaka and Uyehara have become supervisors appears to remove them from the bargaining unit.

Authority for the court’s finding that T & U is not Waiola’s successor is provided by the 1978-81 Collective Bargaining Agreement’s definition of the bargaining unit, as well as the definition of supervisor set forth in § 2(11) of the NLRA, 29 U.S.C. § 152(11). The term “supervisor” is defined in § 2(11) of the NLRA to mean:

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 29 U.S.C. § 152(11) (1976).

In Arizona Public Service Co. v. N.L.R.B., 453 F.2d 228 (9th Cir.1971), the court instructed that “Section 2(11) is to be read in the disjunctive, and the presence of any one of the enumerated powers is sufficient to render an employee a ‘supervisor.’ [citation omitted].” Id. at 232; see also McDonnell Douglas Corp. v. N.L.R.B., 655 F.2d 932, 935 (9th Cir.1981). While plaintiff argues that the question of whether Tanaka and Uyehara are supervisors is a factual matter precluding summary judgment, this court finds as a matter of law that none of the attributes of an employee are present here. It is without question that Tanaka and Uyehara use independent judgment to direct other employees in the interest of T & U. See McDonnell Douglas, supra at 935. As owners, the term “supervisor” applies in fact to both Tanaka and Uyehara — to hold otherwise would render the definition of employees practically meaningless.

The 1981-8^ Collective Bargaining Agreement

Plaintiffs Count IV involves allegations that the WPA was a multiemployer bargaining association and that T & U joined the Association for the purpose of engaging in multiemployer bargaining with the Carpenters’ Union. In support of their motion, defendants counter that T & U resigned from the WPA on January 14, 1982, and the Agreement is limited to “those persons, firms, or corporations that at the time of the execution of this agreement [February 25, 1983] are ... members of said Association.... ” Therefore, T & U maintains it cannot be bound by the Agreement since T & U was not a member of the WPA on the date of execution.

Regarding T & U’s purported withdrawal from the WPA, the Trust funds argue such action violates Section 8(a)(5) of the LMRA, 29 U.S.C. § 158(a)(5). In Bonanno Linen Service v. NLRB, 454 U.S. 404, 102 S.Ct. 720, 70 L.Ed.2d 656 (1982), the Court canvassed the rules governing the withdrawal of an employer or a union from multiemployer bargaining. In situations like the instant case where negotiations have actually begun, withdrawal can only be effectuated on the basis of “mutual consent” or “unusual circumstances.” Id.; see also Retail Associates, Inc., 120 NLRB 388, 41 LRRM 1502.

Like the case of Connell Typesetting Co., 212 NLRB 140, 87 LRRM 1001, 1003 (1974), the facts in this case are sufficiently unusual to warrant the conclusion that the general rule of Bonanno is not applicable to T & U. As the court has previously stated, Percy Ching acted as T & U’s attorney-in-fact with regard to T & U’s involvement in the WPA. Ching had represented to Tanaka and Uyehara that despite their signatures on the “Survey form” (or power of attorney), each company would have the option of signing their own agreement. (This is eventually what the Union attempted to do in March of 1983.) Once T & U discovered the power of attorney form authorized the WPA to negotiate and then bind T & U to any agreement entered into with the union, T & U quickly withdrew, thereby abrogating any action taken by Mr. Ching.

While plaintiff complains neither the union nor the trust funds were ever notified of T & U’s withdrawal from the WPA, that was not T & U’s responsibility. If such a duty belonged to anyone, it rested with the WPA. And once T & U pulled out of multiemployer bargaining, no one had the power to include them in the 1981-84 Agreement. Therefore, given the January 1982 withdrawal, as well as the unusual circumstances of the case, T & U has no obligation vis-a-vis the trust funds under the 1981-84 Collective Bargaining Agreement.

Statute of Limitations

Although the court does not reach this issue, this case illustrates the importance of a trust fiduciary pursuing claims in a timely fashion. When asked the total amount sought at the hearing on this motion, counsel for the trust funds put the sum at close to $70,000. This figure stood in sharp contrast to the approximately $7,000 sum expected by plaintiff. In cases involving delinquent contributions under ERISA, delays in filing suit cannot be countenanced.

Since 29 U.S.C. § 1132 (ERISA) does not contain a statute of limitations, courts must look to the most closely analogous state statute of limitations. See Johnson v. Railway Express, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); International Union v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). H.R.S. § 657-11 provides:

Whenever any federal statute provides for the imposition of a civil penalty or liquidated damages or imposes a new liability or enlarges any existing liability and the statute does not specify the period within which suit to recover the penalty, liquidated damages, or any sum arising out of any brought in state court, shall be commenced within one year from that date the cause of action arises or be thereafter barred.

In Lai v. City and County of Honolulu, 749 F.2d 588 (9th Cir.1984), the court considered the applicability of H.R.S. § 657-11 to 42 U.S.C. § 1983 civil rights actions. While the reasoning of the court in not adopting § 657-11 was subsequently mooted by the Supreme Court’s recent decision in Wilson v. Garcia, — U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (all § 1983 actions to be treated as personal injury actions for statute of limitations purposes), the Ninth Circuit’s analysis of the legislative history of § 657-11 remains pertinent.

The court noted that the main purpose of § 657-11 “was merely to limit the time within which an employee could file suit under the Fair Labor Standards Act.” Lai, 749 F.2d at 590. The court based their statement on remarks made by the Attorney General to Hawaii’s Territorial Governor, and concluded that the narrow scope of the statute at the time of its adoption rendered it applicable only to federal statutes enacted after the adoption of § 657-11 in 1945.

Section 1132 was enacted in 1974, yet the applicability of the one-year period of limitations is hardly clear cut. Since the choice of the appropriate statute depends upon the proper characterization of the cause of action, Price v. Southern Transportation Co., 586 F.2d 750 (9th Cir.1978), plaintiffs urge an analogy between their ERISA claims and a common law breach of contract action. In Jenkins v. Local 705 Intern’l Broth. of Teamsters, 713 F.2d 247, 252 (7th Cir.1983), the court found that “plaintiffs’ claims for denial of benefits are creatures of contract law not labor law.” Furthermore, other courts have noted that short statutes of limitation frustrate the federal policy embodied in § 1132 of ERISA: to protect the interests of participants in employee benefit plans. See e.g., Haynes v. O’Connell, 599 F.Supp. 59, 61 (E.D.Tenn.1984) and cases cited therein.

In Hafer v. Air Line Pilots Ass’n, Inter., 525 F.Supp. 874 (Haw.1981), Judge Heen considered the applicability of § 657-11 to the Railway Labor Act (45 U.S.C. § 151 et seq.). The court held a one-year period was applicable since the Railway Labor Act “imposes a new liability” within the meaning of § 657-11. Id. at 877. In reaching that decision, Judge Heen noted that “the union’s duty of fair representation is a federal obligation judicially fashioned from national labor statutes.” Id., citing Price v. Southern Pacific Transportation Co., 586 F.2d 750 (9th Cir.1978).

This court finds Judge Heen’s reasoning more persuasive than plaintiffs argument that a one-year limitation would “unfairly discriminate against the national policy of ERISA.” Section 1132 does impose “new liability,” and a period of one year in which to bring suit would provide trust funds with sufficient time to protect their interests. Therefore, were the court to rule on the statute of limitations applicable to ERISA suits, the court would apply the one year period found in H.R.S. § 657-11.

Based on the above, IT IS HEREBY ORDERED that defendant T & U’s Motion for Summary Judgment be, and the same is, GRANTED.

      . As for plaintiffs argument that T & U adopted or assumed the 1978-81 Agreement, their position is undermined first by Judge King's rejection of the same argument in Hawaii Carpenters Trust Funds, et al. v. Oshiro Contractor, Inc., Civ. No. 79-0622; and second, the portion of the case they rely on is dicta contained in a footnote. Plaintiffs cite Ariz. Laborers etc. v. Conquer Cartage Co., 753 F.2d 1512, 1520-1521, n. 13 (9th Cir.1985) in support of their theory that notwithstanding the absence of a writing meeting the requirements of § 302, an employer might "adopt” the terms of a predecessor’s Collective Bargaining Agreement. While the quoted section does set out a cogent analysis regarding the adoption by conduct theory, the section also makes clear that an adoption theory would be rejected where “ ‘adoption’ would compel an illegal act_ Cf. Thurber v. Western Conference of Teamsters Pension Plan, 542 F.2d 1106, 1109 (9th Cir.1976) (holding that doctrine of estoppel may not be invoked to compel an act that would not be in compliance with § 302(c)(5)(B).” Id. Therefore, in cases like the instant controversy where there is no underlying agreement, adoption/assumption would run afoul of the writing requirement of section 302.

       The scope of the bargaining unit is described in Section 2 of the 1978-81 Agreement as:
      The employer recognizes the Union as the sole and exclusive bargaining agent for all employees of the Employer except the following classifications whch are excluded from this Agreement; Field Clerical Employees, Office Clerical Employees, Confidential Employees, ..., and Supervisors as defined in the [NLRA], as amended, and all other office employees of the Employer.

      . In addition, plaintiffs successor argument is weakened by the language in N.L.R.B. v. Jeffries Lithograph Co., 752 F.2d 459 (9th Cir.1985). In determining whether an employer is a successor employer, "the touchstone remains whether there was an 'essential change in the business that would have affected employee attitudes toward representation.’ [citations omitted.]" Id. at 464. What could possibly affect employee attitudes toward representation more than becoming owners?

      . The court finds T & U’s primary jurisdiction argument without merit. Plaintiffs raised issues involving Section 8 of the National Labor Relations Act (NLRA), 29 U.S.C. § 158, in response to contentions made by defendant. Defendant then cited, inter alia, San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), for the proposition that plaintiffs § 8 response is one generally within the exclusive purview of the NLRB. However, “it does not follow that all considerations touching upon rights or obligations emanating from sections 7 or 8 are outside the competence of the courts. See e.g. Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 83-86 [102 S.Ct. 851, 859-861, 70 L.Ed.2d 833].” George Day Constr. v. United Broth. of Carpenters, 722 F.2d 1471, 1481 (9th Cir.1984). In cases like the instant one where section 8 issues arise as collateral questions, the doctrine of primary jurisdiction will not deprive the district court of jurisdiction.


author: LEIGHTON, District Judge.

text:
    Emily LOWERS, Plaintiff, v. CITY OF STREATOR; David Kaschak, Former Streator Police Chief; Lee Sember, Streator Police Sergeant; Officer Edwards, Streator Police Officer; Joe Harcar, Streator Police Detective; Officer Dodwell, Streator Police Detective, Defendants.
    No. 85 C 6249.
    United States District Court, N.D. Illinois, E.D.
    Dec. 6, 1985.

      Jan Susler, Charles Hoffman, Chicago, Ill., for Emily Lowers.
    Gladys Stevens, Office of Atty. Gen., Chicago, Ill., for Officer Dodwell.
    Stephen E. Ford, Mark S. Vilimek, Jo M. Bonell, R. Howard Jump, Kiesler & Ber-man, Chicago, Ill., for City of Streator, David Kaschak, Former Streator Police Chief, Lee Sember, Streator Police Sergeant, Officer Edwards, Streator Police Officer, Joe Harcar and Officer Dodwell, Streator Police Detectives.
   Memorandum

LEIGHTON, District Judge.

This cause is before the court on defendants’ motions to dismiss. The granting of defendants’ motions would be improper unless the court determines that it appears beyond doubt that plaintiff can prove no set of facts to support a claim which entitles her to relief. Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985). Further, when making that determination, all the allegations in the complaint must be taken as true and construed in a light most favorable to plaintiff. Greene v. Finley, 749 F.2d 467, 468 (7th Cir.1984).

On December 11, 1982, a man broke into plaintiff’s home and raped her. Plaintiff immediately reported the incident to the police department of the defendant city. The defendant police officers, Edwards and Kaschak, instructed her to go to the hospital for tests. Thereafter, plaintiff returned to the police station where she gave a statement of the incident, provided defendants with a description of the rapist, and identified him from police photographs. Defendants, officers Sember and Dodwell, then accompanied her to her home to investigate the scene of the crime where defendant Dodwell told her that he had seen situations similar to this one before and warned that the rapist would return and repeat the crime.

On December 15, 1982, on instructions from defendant Sember, plaintiff submitted to a polygraph examination regarding the rape; that examination revealed that she was telling the truth. Thereafter, approximately once a week, plaintiff spoke to defendants to inquire about the progress of their investigation and to state her willingness to identify the rapist from a lineup. Defendants took no action in the matter: they did not write police reports; they did not question or take into custody the man identified; and they did not process the evidence collected. On May 26, 1983, the same man broke into the plaintiff's home and raped her again. This time, on receiving plaintiff’s statement, defendants arrested the man; he subsequently pled guilty to both rapes. Based on these facts, plaintiff brought this 42 U.S.C. § 1983 action.

In support of their motions, defendants first argue that plaintiff’s § 1983 claim, filed more than two years after the challenged action, is time barred. This court has previously held that the Illinois limitations statute to be applied in § 1983 actions is Ill.Rev.Stat. ch. 110, ¶ 13-205 (1983), which provides for a five-year limitation period. Bigley v. Kodatt, 87-5590 (N.D.Ill. Sept. 20, 1985) (citing Shorters v. City of Chicago, 617 F.Supp. 661 (N.D.Ill.1985)). Plaintiff’s suit was filed well within that five-year period and is therefore timely.

Defendant Dodwell, in a separate motion, argues that plaintiff has failed to state a cause of action upon which relief can be granted because she does not allege the existence of a constitutional right and a corresponding duty on defendant’s part to protect that right.

Section 1983 imposes liability on anyone who under color of state law “subjects ... any citizen ... or other person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution....” 42 U.S.C. § 1983. Accordingly, the statute applies only where a party is deprived of a constitutional right. Plaintiff’s § 1983 claim alleges that defendants’ actions, in failing to protect her after the first rape, deprived her of Fourteenth Amendment rights to due process and equal protection.

Generally, there is no constitutional right, either in the due process clause or the equal protection clause, to be protected against being attacked or raped by a member of the general public. And consequently there is no corresponding duty placed on the state and its officers requiring them to act when members of the general public are in danger. Bowers v. De Vito, 686 F.2d 616, 618 (7th Cir.1982). However, there are two recognized exceptions to this general rule. The first is where the state has created a custodial or other special relationship with the plaintiff. Jackson v. Byrne, 738 F.2d 1443, 1447 (7th Cir.1984). In those situations, the state and its officers have a duty, under the due process clause to provide those special individuals with protection. Id. at 1447. The second exception is where the state discriminates in providing protection to members of the public; those situations “of course violate the equal protection clause of the Fourteenth Amendment.” Bowers, 686 F.2d at 618. Taking the facts alleged as true, plaintiff comes within both exceptions and therefore states a claim under § 1983.

The notion that the due process clause creates a duty to protect and a corresponding right to be protected where a “special relationship” exists between the state and an individual, originated in the Supreme Court opinion of Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980). There the Court, while affirming the dismissal of a suit against the state parole board seeking damages for a death caused by a parolee, noted that “the parole board was not aware that appellant’s decedent, as distinguished from the public at large, faced any special danger.” Id. at 285, 100 S.Ct. at 559. In this regard, the court of appeals in this circuit has held that “a right and corollary duty to basic protective services may arise out of special relationships created or assumed by a municipality in regard to particular people.” Ellsworth v. City of Racine, 774 F.2d 182, 185 (7th Cir.1985). The court has also recognized that the contours of what constitutes such a special relationship are “hazy and indistinct.” Id. at 185.

Plaintiff alleges that defendants investigated the first rape and warned her that the rapist would return to her home and repeat the crime. These facts certainly made defendant aware that plaintiff faced a special danger, as distinguished from the public at large. This, coupled with defendants having knowledge of the rapist’s name immediately after the first rape, created a special relationship between the parties and consequently bestowed upon plaintiff the right to be protected. See Estate of Bailey By Oare v. County of York, 768 F.2d 503, 510-11 (3d Cir.1985); Jensen v. Conrad, 747 F.2d 185, 195 n. 11 (4th Cir.1984).

As to the equal protection exception, plaintiff alleges that defendants’ failure to arrest the rapist and to continue the investigation was a result of her being a woman. This allegation is sufficient to state a claim under § 1983. Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir.1983); Jackson v. Byrne, 738 F.2d 1443, 1447 (7th Cir.1984).

Finally, although the parties have not presented the issue, the court notes that the complaint sufficiently alleges a policy of the defendant city, to discourage the vigorous prosecution of violent crimes against women, so as to state a § 1983 claim against it. Monell v. New York City Department of Social Service, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978). While this case is different from Monell, where the city had an official policy embodied in a municipal regulation, the complaint here alleges a sufficient pattern of activity over nearly a six-month period to indicate a deliberate indifference on the part of the defendant city. Thurman v. City of Torrington, 595 F.Supp. 1521, 1530 (D.Conn.1984). This pattern of behavior is sufficient to at least raise the inference of a policy on the part of the city. Id. at 1530; Turpin v. Mailet, 619 F.2d 196, 201-02 (2d Cir.1980).

Therefore, because plaintiffs complaint was timely filed and sufficiently alleges facts to state a claim upon which relief can be granted, the court denies defendants’ motions to dismiss.

So Ordered.