author: ORRICK, District Judge.

text:
    Lee M. SEILER, Plaintiff, v. LUCASFILM, LTD., Twentieth Century-Fox Film Corporation, George W. Lucas, Jr., and Joseph E. Johnston, Defendants.
    No. C-83-0696 WHO.
    United States District Court, N.D. California.
    Oct. 16, 1984.

      Bronson, Bronson & McKinnon, San Francisco, Cal., John R. Murtha, Moraga, Cal., for plaintiff.
    Joel E. Boxer, Dorothy Wolpert, Nutter, Bird, Marella, Boxer Wolpert & Matz, Beverly Hills, Cal., John W. Keker, Robert A. Van Nest, Keker & Brockett, San Francisco, Cal., for defendants.
   OPINION

ORRICK, District Judge.

This copyright case is based upon charges by plaintiff that defendant creators and producers of the movie “The Empire Strikes Back” (“ESB”) copied some of his drawings for use in that film. Plaintiff possesses no originals of any of the work he contends was copied by defendants. In fact, plaintiff has been unable to produce any neutral third party who currently has in his or her possession an original or duplicate of the works in issue which that person possessed prior to the release of ESB. Instead, plaintiff seeks to introduce secondary evidence in the form of copies, reconstructions, projections, and the like in lieu of the originals in order to establish the content of those originals. The question presently before the Court is whether plaintiff can show as required by Federal Rule of Evidence 1004 that he did not lose or destroy the originals of his drawings in bad faith. The evidence offered by plaintiff is so inherently and overwhelmingly unbelievable that the Court finds that plaintiff has failed to meet his burden on the preliminary issue of loss or destruction without bad faith. Therefore, all secondary evidence offered to prove the contents of the missing originals is inadmissible.

I

On February 14, 1983, plaintiff Lee M. Seiler filed a complaint against defendants Lucasfilm, Ltd., Twentieth Century-Fox Film Corporation, George W. Lucas, Jr., and Joseph E. Johnston arising out of defendants’ alleged copying of plaintiff’s artwork. Plaintiff’s amended nine-count complaint alleges that three 'of his Garthian Strider designs (“striders”) were unlawfully appropriated by defendants for use in the film ESB, a sequel to “Star Wars.” The striders originally in issue were (1) the AO 785/2 “Garthian Sprinter” (“AO 785/2”), (2) the AO-34E “Garthian Walker” (“AO 34E”), and (3) the 788 “Roundheaded Strider” (“788”). Plaintiff has since admitted that the 788 was not copied by defendants. As such, that strider is no longer in suit. Plaintiff seeks injunctive relief, monetary damages measured by defendants’ revenues, imposition of a constructive trust over all profits and advancements derived from the works allegedly copied, and for punitive damages.

Plaintiff’s first six causes of action are for copyright infringement; plaintiff alleges that defendants copied from all or some of four different publications. The seventh cause of action alleges violation of the Trademark Act of 1946, 15 U.S.C. §§ 1051 et seq. The eighth cause of action alleges various unfair competition practices in violation of California Business and Professions Code §§ 17200 et seq., and the ninth cause of action seeks imposition of a constructive trust over all revenue received as a result of patent No. 266,777 owned by defendants Lucas and Johnston.

The Court, acting pursuant to Federal Rule of Evidence 104(a), granted the parties’ motions for an evidentiary hearing in order to determine the preliminary question of whether the originals were lost or destroyed in bad faith. The Court heard testimony over seven days from nine witnesses presented by plaintiff and five witnesses presented by defendants, and viewed in excess of one hundred documentary exhibits.

On September 25, 1984, counsel for the parties submitted their proposed findings of fact. On September 26, 1984, parties’ counsel submitted counterfindings of fact and also conclusions of law. Both parties also briefed the nature of the evidentiary hearing conducted by the Court, the applicability of Federal Rules of Evidence 104, 1004, and 1008 to the findings and counter-findings, and the proper standard to be applied by the Court in analyzing the evidence proffered at the hearing. On October 1, 1984, the parties orally argued their positions to the Court, whereupon the matter was taken under submission.

At the outset, the Court repeats for emphasis that the great bulk of plaintiff’s testimony was unbelievable, often bordering on the incredible. Plaintiff testified extensively concerning the “facts” surrounding the destruction and loss of plaintiff’s originals, only to materially alter his version of those facts upon cross examination, and often again upon redirect and recross examination. Not surprisingly, the majority of these bizarre “facts” were not corroborated by any neutral or independent third party. In particular, plaintiff’s version of the circumstances surrounding the destruction of his originals by flood, was inherently unbelievable and disturbingly contradictory. In sum, it appears to the Court that the absence of any originals of the works in suit, or even a single copy produced by any independent third party that was possessed by that third party prior to the release of ESB, is far from accidental or providential. Accordingly, the testimony and other evidence adduced by plaintiff at the evidentiary hearing does not meet the even minimal showing required under Federal Rule of Evidence 1004 in order to justify admission of secondary evidence to prove the contents of the missing originals.

A. Background.

Plaintiff is an artist and designer of science fiction creatures and machines. Plaintiff began creating a “family” of Garthian striders some time prior to the release of ESB to the public. Plaintiff claims that the two works in issue in this suit, the A0785/2 and the A034E are part of this family of striders. Some of the publications containing the works in suit are claimed to have been first published as early as 1976; others are claimed to have been first published in 1977. The publications were not registered with the United States Copyright Office until 1981, 1982, and 1983. The movie that is the subject of this suit was first released in May 1980, although certain promotional portions of the movie were released for public viewing several months prior to May 1980.

B. Plaintiff is Skilled in Reproduction Techniques.

Plaintiff is skilled in various reproduction techniques, including making blueprint and offset materials. He has often made his own negative and positive reproductions without the use of outside vendors. Plaintiff has often created several versions of the same basic material. Plaintiff has transposed portions from one or more sets of materials onto other subsequently-created materials, utilizing cut-and-paste and other reconstruction techniques. Plaintiff’s business practice is to reuse portions of his existing graphic materials on subsequent materials.

C. Destruction of Originals by Flood.

Plaintiff claims that the vast majority of his original artwork, including original artwork depicting the A0785/2 and A034E, was destroyed in 1979 by “flood.” Such materials were allegedly stored underneath a geodesic dome house that plaintiff was in the process of building in Boonville, California. The house consisted of a geodesic dome placed upon a wooden platform. According to plaintiff, the area beneath the dome where the materials were stored consisted of dirt and gravel, was probably open on three sides and fenced in on the remaining side by chicken wire, or entirely fenced in by chicken wire. Plaintiff claims that all of his original artwork stored in cardboard boxes underneath the dome house in this dirt and gravel area were completely destroyed by some sort of extensive water damage, such that the entirety of those materials had to be discarded at the Mendocino dump.

The Court finds that the testimony concerning the water damage and the resulting destruction of the bulk of plaintiff's original artwork, was inherently unbelievable, contradictory, and unsupported by the testimony of neutral witnesses. The Court’s finding is based upon the following:

1. Plaintiff testified at the first session of his deposition that he discovered the damage to his artwork stored underneath the dome house when he first returned to the dome house in July or August 1979. Plaintiff also testified at that time that he did not add any additional material to the material already stored, but immediately discarded the damaged material. At a later deposition session and at the evidentiary hearing, however, plaintiff testified that he did not discover the water damage to the stored materials until six or eight weeks (or longer) after he returned to the dome house, and that, although he was aware of the damage sustained by the stored materials, he added as many as twelve more boxes of original material to those already stored under the dome. It was not until some time in September 1979 that plaintiff rediscovered the damage and discarded the entire store of boxes containing the artwork.

2. Plaintiff testified in several deposition sessions, and upon direct examination at the evidentiary hearing, that all of the original artwork stored underneath the dome house was damaged beyond restoration or use, and that plaintiff discarded all of the boxes containing those materials at the Mendocino dump. Halfway through the evidentiary hearing, however, plaintiff suddenly recalled that he had in fact saved 100 boxes of original artwork and other such materials. Plaintiff did not testify as to what happened to the materials contained in those 100 salvaged boxes.

3. The testimony concerning the number of boxes, and hence, the amount of artwork stored under the dome house was contradictory. Plaintiff’s wife, Mary Graves, testified that there were approximately 30 to 50 boxes stored, and that the boxes were stacked about four feet high. Plaintiff, on the other hand, testified that approximately 140 boxes were stored underneath the dome house.

4. Neither plaintiff, nor any other witness offered by plaintiff, could explain the source of the water that plaintiff claims completely destroyed his original artwork. Plaintiff testified that the soil comprising the dirt and gravel floor upon which his work was stored was very wet soil, and that he had installed a drainage pipe underneath the dome in order to siphon off any excess runoff. Yet, plaintiff offered no explanation for how such wet soil could completely soak and damage beyond salvage boxes that were stacked four feet from the soil. Although Graves testified that she saw water on top of the stacked boxes, plaintiff could offer no evidence of any rainfall in the summer months in which the water damage allegedly occurred, no leakage from household plumbing, or any other such plausible explanation for the extensive water damage suffered. Additionally, plaintiff testified that the damage to the boxes was uniformly complete, requiring that all boxes be discarded. Yet plaintiff offered no explanation for how, in a mere six to eight week period of time, such damage could occur to newly stored boxes to the same extent as boxes previously stored under the house.

5. Graves testified that she had ten boxes containing her personal belongings also stored underneath the dome along with plaintiff’s artwork, and that the boxes were equally unprotected from water and other elements. Graves also testified that her ten boxes survived the water incident without suffering any water damage.

6. Although Graves testified that she was not physically present when plaintiff discovered and discarded the boxes stored under the dome house, she testified that she was somehow able to salvage two pieces of artwork. Those two items are two different plans, one happening to depict the A0785/2, and the other happening to depict the A034E, the works in issue in this suit. Graves testified further that she “baked” these plans in order to dry them out, although she offered contradictory testimony concerning where and when this baking was done. Graves said that she did not tell plaintiff that she was able to save the two pieces of artwork until 1981, some time after plaintiff had first contacted defendants with charges of unlawful appropriation of the very designs depicted on the two pieces of salvaged artwork.

7. The existence of the “flood” and the almost complete destruction of the vast majority of plaintiff’s original artwork including the designs in issue in this suit, cannot be corroborated by any neutral or independent party.

8. Neither plaintiff nor Graves could remember with any certainty whether either one of them conducted an extensive search through the boxes in order to determine which items, if any, contained therein were salvageable before discarding the entire store of boxes.

9. Plaintiff took no photographs of the claimed damage, nor did he produce any documentary evidence supporting the existence of the damage.

10. Plaintiff made no insurance claim for damage caused by the incident.

D. Bad Faith Nonproduction.

The Court finds that the originals of the A0785/2 and A034E were not destroyed by water in the dome house incident in 1979, but that the originals depicting those works have been purposefully destroyed or withheld from production. The finding is based on the following:

1. Plaintiff claims that he and Graves sold copies of the A0785/2 and A034E at the San Jose Fantasy Convention in February 1979. Photographs of plaintiff’s booth at that convention, however, do not reveal the presence of drawings or other materials containing either of the works in issue, although many of plaintiff’s other unrelated works are clearly depicted. The sign posted at plaintiff’s booth during that convention refers to the Garthian Strider in the singular; both parties admit that plaintiff sold the 788 strider, not in issue in this suit, at that convention. Four independent witnesses testified that they visited plaintiff’s booth at the convention and, although they confirmed the existence of the 788 strider, none saw any materials depicting, or referring to, the A0785/2 or A034E. None of the witnesses were told by plaintiff about any striders other than the 788, although at least two of the witnesses recall talking to plaintiff extensively about plaintiff’s strider materials. Finally, plaintiff’s business partner at the time, Mitsuro Ikuta, testified that he does not remember any of the works in issue available at the San Jose Fantasy Convention.

2. In December, 1978, plaintiff and Ikuta wrote to the Japanese publishers of Starlog magazine listing the products that they had available for sale, as well as products that were not currently available, but contemplated to be so in the near future. The 788 strider was identified as “first in a series”; and although plaintiff claims that the A0785/2 and A034E were in existence and available for sale in 1978, no mention was made of either of those works in the letter.

3. Although plaintiff placed advertisements in several magazines during 1979 and 1980 advertising the 788 strider and other unrelated materials, none of the advertisements refer to the A0785/2 or the A034E.

4. Plaintiff has no records prior to the time of his access to ESB materials of any customer orders or customer correspondence depicting or referencing the A0785/2 or A034E.

5. Product order codes utilized by Graves in 1979 and 1980 to account for customer orders by product did not contain differentiation between striders ordered, as was the case for other materials of which there were multiple versions sold by plaintiff. Graves testified that, although multiple striders were for sale in 1979, only the 788 strider was available for sale in 1980.

6. Shortly after the release of ESB, plaintiff drafted a letter to Dan Dawes, attorney for defendant Lucasfilm, in which plaintiff discussed materials he considered to be infringed upon by defendants; none of the materials identified are the A0785/2 or the A034E.

7. In late 1982, after plaintiff retained attorneys for this lawsuit, plaintiff sent out a survey to over 2,500 persons from plaintiffs mailing list inquiring whether any of those persons currently possesses or at one time possessed a copy of the A0785/2 or A034E. The survey also asked whether any customer had any interest in ordering or “replacing” such materials at a 30 percent discount. The results of the survey did not produce anyone who possesses or possessed a copy of the A0785/2 or A034E. As a follow-up to this survey, plaintiff sent any person who responded indicating an interest in receiving plaintiff’s works, a free complimentary copy of the plans of the A0785/2 and A034E, products the follow-up letter identified as having been sold in the past.

8. Plaintiff filed with the United States Copyright Office copyright registration applications for the works in issue. Plaintiff did not attach as the deposit sample of his works either originals, or duplicates, produced at the time of first publication. Rather, plaintiff “reconstructed” the publications as he claimed they appeared upon first publication in 1976 or 1977. Several of the deposit copies contain text which is internally inconsistent, as well as inconsistent with the artwork accompanying the text. Additionally, at least one of the advertising fliers claimed to have been published in 1976 was in fact never published, but was instead a proof copy.

9. Neither plaintiff nor any witness possesses originals of the AO 785/2 or A034E.

10. No independent third party possesses copies of the AO 785/2 or A034E which that person possessed prior to 1980.

E. Fabricated Evidence.

Plaintiff seeks to introduce a variety of secondary evidence for the purpose of proving the contents of the missing originals. The Court finds that much of this evidence has been fabricated or misrepresented to the Court. In particular, the Court finds the following:

1. The Samuel Comstock letter and accompanying flier depicting the A034E could not have existed in its present form prior to 1980, although the envelope bears a 1979 postmark date.

2. The document containing the note to “Mitch” Ikuta dated 12/76, indicating plaintiff would visit Ikuta in a few days, did not exist as dated, because plaintiff was living in Ames, Iowa, during the period in question. Ikuta testified that he was unfamiliar with the document.

3. The half-inch videotape containing snippets depicting plaintiff’s original garthian materials was not filmed in 1978 as plaintiff claims. Plaintiff testified at his deposition that no copies of the videotape inventory had been made and that the original three-quarter inch videotape had been lost. The videotape that is claimed to be a copy of this “lost” three-quarter inch tape is on one-half inch tape and is a third or fourth generation copy. Plaintiff’s explanation as to its present condition was unsatisfactory and purposefully confusing. Additionally, segments plaintiff contends were taped in 1979 are strikingly similar to segments plaintiff contends were taped in 1978, including the lighting, camera angle, background music, and position of desk blotter stamp, indicating that all of the segments were created at the same time. The claimed 1978 segment containing a piece of paper with “1978” written upon it was created purposefully to misrepresent the true date of the tape’s creation.

4. The blueprint plans “found” by Ikuta in his briefcase were not placed in that briefcase prior to 1978, as Ikuta contends. At Ikuta’s first day of deposition on June 28, 1983, Ikuta responded to a subpoena requiring production by producing a copy of a 1980 printed version of The Garthian Culture, contending that he had retrieved it from a briefcase that had been locked and unopened since 1978. On the second day of his deposition, Ikuta produced a large number of blueprints depicting the A0785/2 and A034E, claiming that, although he had previously conducted a thorough search of the briefcase in compliance with the subpoena, he had “overlooked” the bulky plans he produced on the second day. The briefcase in which the documents were found is a regular-sized briefcase, approximately four inches thick.

5. The film “found” by Ikuta in his freezer was not placed in that freezer in 1978, as Ikuta contends. Ikuta testified that he had found the film in the freezer compartment of a refrigerator Ikuta shared with the plaintiff, that the film had been there since 1978, but that he had never before noticed the presence of the film in the freezer. The freezer compartment is admitted to be only about two or three cubic feet in size, and has not been defrosted since 1976. The box containing the film does not suffer from “freezer burn” or other such damage. Ikuta has a 4 percent contingency interest in the lawsuit.

6. The materials found by Graves that were “found” in early 1984 in a storage box containing kitchen goods were not placed there in 1979. The box was stored in a commercial storage unit that Graves shares with plaintiff. Graves testified that she found the documents as “filler” among kitchen goods that she packed in 1979, that she doesn’t recall placing the documents in with her personal kitchen items, that the box has remained unopened since 1979, even though Graves has moved six times during that time period, and that she has no idea how the documents came to be in her personal storage box. Graves further testified that she did not search her personal boxes in connection with this suit prior to 1984, despite the obvious importance of locating these exhibits.

7. The plans claimed to be salvaged from the dome house water incident and “baked” by Graves, contain pictures of the A0785/2, which has one continuous canopy in the place of eyes, yet the text accompanying that picture refers to “compound eyes.” The 788 strider, not in issue in this suit, contains compound eyes.

P. Testimony of Independent Witnesses.

Plaintiff called to testify six independent witnesses, in order to establish that the originals of the A0785/2 and A034E were destroyed or lost without bad faith, and that such documents were in existence pri- or to the release of ESB. After careful consideration of each witnesses’ testimony, this Court finds:

1. None of the witnesses possess an original or copy of the A0785/2 or A034E which that witness possessed prior to 1980.

2. None of the witnesses were able to positively and consistently identify the AO 785/2 or A034E as being in existence prior to 1980.

G. Conclusion.

In sum, based upon seven days of testimony elicited from fourteen witnesses, and careful consideration of over one hundred exhibits, the Court finds that:

1. Plaintiff testified falsely as to the destruction of the original artwork depicting the A0785/2 and A034E in a 1979 “flood” underneath his Boonville dome house.

2. Plaintiff purposefully destroyed or withheld in bad faith the original artwork depicting the A0785/2 and A034E.

3. Plaintiff fabricated and misrepresented the nature of secondary evidence for use in this lawsuit.

II.

A. Application of Federal Rule of Evidence 100If.

Federal Rule of Evidence 104(a) provides that preliminary questions concerning the admissibility of evidence shall be determined by the court. Fed.R.Evid. 104(a). Federal Rules of Evidence 1004 and 1008 further delineate the duty of the court in determining preliminary questions regarding admissibility. Rule 1004 provides that secondary evidence of the contents of a writing, recording, or photograph is admissible unless the proponent of the evidence lost or destroyed the originals in bad faith. Fed.R.Evid. 1004(1). Rule 1008 states that the determination of whether a condition has been fulfilled is ordinarily for the court to decide. Therefore, Rule 1004 read in conjunction with Rule 1008 makes the determination of whether the proponent of the evidence has established that all the originals were lost or destroyed without bad faith a question for the court. Rule 1008 provides further that the trier of fact is to determine the question of whether the originals ever existed. Fed.R.Evid. 1008.

The burden of proving loss or destruction under Rule 1004 is on the proponent of the evidence. See 5 Weinstein’s Evidence, § 1004(1)[05] at 1004-16.

The parties in this case agree that the central inquiry is whether plaintiff’s original artwork depicting the A0785/2 and A034E existed in 1979 and earlier and was principally destroyed by water damage, or whether, as defendants contend, the originals were created following plaintiff’s access to materials utilized in the creation of ESB and have been intentionally withheld or destroyed in order to facilitate the admission of secondary evidence.

Plaintiff characterizes this inquiry as a jury question, and as such, inappropriate for this Court to decide as a preliminary matter. Plaintiff reasons that the Court must focus solely on the time period particularly in issue here, that period of time preceding plaintiff’s access to ESB materials; the question then becomes whether the A0875/2 and A034E ever existed during that time period. Plaintiff argues that this puts the issue squarely within Rule 1008’s allocation of such questions to the jury.

Defendants, on the other hand, contend that the originals did exist at some time (an inescapable conclusion given the second and third generation copies sought to be offered by plaintiff), but that the originals were created following plaintiff's access to ESB materials, and have been intentionally withheld or destroyed to conceal the true date of their creation. Therefore, defendants characterize the issue as not whether the originals ever existed, but whether the originals have been lost or destroyed in bad faith, a proper preliminary determination for the Court under Rules 104(a), 1004, and 1008.

The Court finds defendants’ characterization to be the correct one. First, the originals must have existed at some time so that plaintiff could create the copies he seeks to offer into evidence. This is clearly not a case in which plaintiff is seeking to offer secondary evidence in the form of oral testimony and the like, in which case a true question as to the existence of the original may be posed. Rather, defendants’ contention is that the originals existed and were destroyed in bad faith, or still exist and are being intentionally withheld.

Second, whether the originals were created prior to plaintiff's access to ESB materials or following that access is of little consequence when considered in light of the purpose of the “best evidence” rule. Although the “best evidence” rule is designed to facilitate the use of secondary evidence when there is a need to allow that evidence to be used in lieu of the original, the rule is also designed to keep out secondary evidence when its admission would be contrary to the furtherance of justice. A copy is always liable to error, whereas this contingency wholly disappears when the original is produced. 4 Wigmore on Evidence, § 1179 at 417. The copy may lack such features of handwriting, paper, and the like, contained in the original, and as such, deprive the opponent of the document or the trier of fact valuable means of learning legitimate objections to the significance of the document. Id. Rule 1004’s purpose of making inadmissible secondary evidence of the content of originals which have been withheld or destroyed in bad faith should not be circumvented by plaintiffs restrictive reading of that Rule.

In sum, the Court finds that Rule 1004 is properly applied to this case and that plaintiff must establish the foundational requirements under that Rule by showing to the satisfaction of the Court that the originals for the A0785/2 and A034E were lost or destroyed without bad faith.

B. Plaintiff Must Prove that the Originals Were “More Probably than Not” Lost or Destroyed Without Bad Faith.

It is clear that the sufficiency of the preliminary proof is addressed to the discretion of the trial judge. See 5 Weinstein, supra, § 1008[04] at 1008-12; Willhoit v. C.I.R., 308 F.2d 259, 265 (9th Cir.1962); Development Corp. of America v. United Bonding Insurance Co., 413 F.2d 823, 825 (5th Gir.1969). The trial judge’s determination as to the standard of proof applicable will not be disturbed in the absence of clear evidence of mistake amounting to an error of law. Willhoit, supra, 308 F.2d at 265; see also, United States v. Gerhart, 538 F.2d 807, 810 (8th Cir.1976).

Plaintiff argues that the proper standard to apply is that “whenever there is doubt, discretion is best exercised by admitting the evidence” and leaving it to the jury to evaluate the excuse for nonproduction (citing 5 Weinstein, supra, § 1004(01)[05] at 1004-18). Several cases, however, indicate that a stricter standard should be applied when the particular facts and circumstances warrant such an application. See, e.g., Sylvania Electric Products, Inc. v. Flanagan, 352 F.2d 1005 (1st Cir.1965); Willhoit, supra, 308 F.2d at 265. Where the missing original documents in dispute are the “very foundation of the claim,” for example, more strictness in proof is required than where the writings are only involved collaterally. Sylvania, supra, 352 F.2d at 1008. Moreover, where any suspicion hangs over the true content of the instrument, or that it may be designedly withheld, a “more rigid” inquiry should be made into the reasons for its nonproduction. Willhoit, supra, 308 F.2d at 265; see also 4 Wigmore, supra, § 1194 at 439. (“[T]he moment the destruction becomes questionable at all, the inquiry is raised * * *.”)

Under the particular facts and circumstances of this case, the Court declines to apply such a lenient standard as that advocated by plaintiff. Rather the proper standard to be applied by the Court in assessing whether or not plaintiff has satisfied the preliminary requirements of Rule 1004 is the “more probable than not” standard. Although there is some case authority for application of an even more stringent standard, under which the proponent of the evidence would have to show that there is “no reasonable probability” that the originals had been designedly withheld or suppressed, this Court finds the “more probable than not” standard advocated by defendants and Judge Weinstein sufficient to vindicate the best evidence policy. See 5 Weinstein, supra, § 1008[04] at 1008-14.

First, the peculiar and suspicious circumstances surrounding the “discovery” and production of much of the secondary evidence in this case requires a “rigid inquiry.” Second, the documents in issue here are the “very foundation” of plaintiffs claim, a claim in which plaintiff seeks to have a jury compare the similarities between plaintiffs work and defendants’ work, and find the two to be “substantially” or even “strikingly” similar. In making such a comparison, the importance of allowing a jury to view the plaintiff’s originals for color, size, shading, line, and the like, rather than recreated, cut-and-paste, or third and fourth generation copies of those originals, is clear.

Accordingly, the applicable standard to be applied is that of “more probable than not.” Under such a standard, the Court must find as a preliminary matter that it is “more probable than not” that the originals of the A0785/2 and A034E were lost or destroyed without bad faith.

C. This Court has Discretion to Determine Whether The Proof Meets the Relevant Standard.

The determination of the sufficiency of the search, and in general, of the proof of the fact of loss is within the trial court’s discretion. 4 Wigmore, supra, § 1194 at 442; see also, 5 Weinstein, supra, § 1008[04] at 1008-12. (“The court determines the standard * * * and whether the facts as it finds them show the standard was met.”)

D. Plaintiff Has Not Established that the Originals Were Destroyed or Lost Without Bad Faith.

Based upon the Court’s findings of fact set forth above, the Court finds that plaintiff has not established, more probably than not, that any originals existing in 1979 and earlier were destroyed by water damage at the Boonville dome house, or were otherwise lost or destroyed without bad faith. The Court also finds, based upon the Court’s findings of fact set forth above, that plaintiff has not established to the requisite degree that the original drawings existing after 1979 were destroyed or lost without bad faith.

Therefore, plaintiff has failed to satisfy the foundational requirements of Rule 1004 for admission of secondary evidence.

E. This Court Properly Considered All Evidence in Making its Determination.

Rule 104(a) expressly provides .that in making preliminary determinations, a court is not bound by the Rules of Evidence except those with respect to privileges. Ped.R.Evid. 104(a). Although Rule 104(a) is not an “open invitation” to ignore the Rules of Evidence, Rule 104(a) recognizes the ability of the court to receive all relevant evidence and to discount that evidence that is inherently untrustworthy or suspicious. See 1 Weinstein, supra, § 104[2] at 104-22-23 (trial judge’s legal training and experience can be relied upon to winnow the “chaff from the wheat”). Therefore, under Rule 104(a), this Court was properly empowered to consider all relevant evidence in making its determination, without adhering strictly to the Rules of Evidence regarding hearsay and the like.

F. Secondary Evidence of the Content of the Originals is Inadmissible.

Under Rule 1004, secondary evidence is admissible to prove the contents of the missing originals if the preliminary requirements of Rule 1004 are met. Additionally, Federal Rule of Evidence 901(a) requires all evidence to possess a requisite degree of authenticity in order to support a finding that the evidence in question is what the proponent of such evidence claims it to be. Fed.R.Evid. 901(a). As this Court has found that plaintiff has not satisfied the preliminary requirements of Rule 1004, and that much of the secondary evidence plaintiff wishes to introduce lacks the requisite authenticity to justify its admission, all secondary evidence sought to prove the contents of the missing originals is inadmissible.

The foregoing constitutes the Court’s findings of fact and conclusions of law. On or before October 26, 1984, counsel will file certificates of counsel setting forth the next steps to be taken in the case.

      . Plaintiff also filed two related lawsuits. One is identical to this lawsuit except that the complaint alleges infringement in "Return of the Jedi," another sequel to “Star Wars." The other lawsuit is against commercial licensees of defendants Lucasfilm and Twentieth-Century Fox for secondary infringements through products using the contested designs. All three cases were consolidated for discovery.

      . The trial of this case was bifurcated, so that the parties would first try the question of defendants' use of plaintiff's works in the movie ESB, and then if necessary, the issue of relief.

      . Those persons who did provide corroboration of the loss and destruction of plaintiffs originals were persons arguably under the "control" of plaintiff: his wife, and his business partner who admitted to having a contingency interest in the suit.

      . The sign states: “Blue Prints of the Garthian Strider. You Can Build It!!” when referring to the strider plans for sale.

      . The survey also inquired about two other striders.

      . Rule 1004 states no preference for any particular type of secondary evidence to prove the content of sufficiently accounted for missing originals.

      . Von Brimer v. Whirlpool Corp., 362 F.Supp. 1182, 1187 (N.D.Cal.1973), aff’d 536 F.2d 838 (9th Cir.1976).

      . In a copyright action, copying is proved by substantial similarity coupled with access. See 3 Nimmer, Nimmer on Copyright § 13.01[B],


source: Caselaw Access Project

author: HOLSCHUH, District Judge.

license: Public Domain

text:
    QUICK AIR FREIGHT, INC., Plaintiff, v. TEAMSTERS LOCAL UNION NO. 413, Defendant.
    No. C-2-82-1158.
    United States District Court, S.D. Ohio, E.D.
    Dec. 5, 1984.

      James M.L. Ferber; Shottenstein, Zox & Dunn, Columbus, Ohio, for plaintiff.
    Jerry L. Riseling, Columbus, Ohio, for defendant.
   MEMORANDUM AND ORDER

HOLSCHUH, District Judge.

I. PROCEDURAL BACKGROUND.

Plaintiff Quick Air Freight, Inc. (“Quick Air”) commenced this action on September 24, 1982, pursuant to section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a), against defendant Teamsters Local Union No. 413 (“Local 413”) for an alleged breach of a collective bargaining agreement between Quick Air and Local 413 covering plaintiff’s mechanics. It is alleged that the collective bargaining agreement, effective from September 30, 1979 through September 26, 1982, set forth mandatory grievance and arbitration provisions for the resolution of employees’ complaints as well as a “no strike clause” and that, in breach of the contract, the defendant, its officers, agents, representatives, and members on July 6, 1982, engaged in a strike. Plaintiff did not seek injunctive relief under Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), to compel its mechanics to return to work and resort to the grievance and arbitration procedures, but instead sought compensatory and punitive damages against Local 413 and certain of its officers and members.

On November 5, 1982, Local 413 filed its answer and a counterclaim, alleging in the counterclaim that Quick Air breached a collective bargaining agreement between Quick Air and Local 413 covering Quick Air’s regular drivers and combination drivers-dockmen by refusing to pay these employees a fifteen cent raise due January 1, 1982, under the terms of that agreement.

On March 25, 1983, Local 413 filed an amended counterclaim in which it asserted in Count I the alleged breach of the collective bargaining agreement involving the raise due the drivers and drivers-dockmen and added by Count II another alleged breach of the same agreement involving Quick Air’s refusal to provide medical coverage for employees who had retired during the period the agreement covering the drivers and drivers-dockmen was in effect.

On June 13, 1983, Quick Air moved to dismiss both counterclaims or for summary judgment thereon, based on the pleadings; the deposition of Keith L. Milburn, a former business agent of Local 413; and various documents submitted with plaintiff’s motion.

II. LOCAL 413’S COUNTERCLAIM FOR AN ALLEGED BREACH OF THE COLLECTIVE BARGAINING AGREEMENT BECAUSE OF QUICK AIR’S REFUSAL TO PAY THE FIFTEEN CENT ($.15) RAISE.

A. FACTS.

On November 26, 1979, Quick Air and Local 413 executed a collective bargaining agreement covering the regular drivers and combination driver-dockmen who were employed at Quick Air’s Columbus, Ohio terminal. Article 23 established the agreed upon hourly rates for regular roster employees as follows:

July 1, 1979 July 1, 1980 $8.30 per hour $8.80 per hour Jan. 1, 1981 $8.95 per hour

Jan. 1, 1982 July 1, 1981 $9.50 per hour 9.65 per hour

The agreement also included various provisions dealing with a grievance and arbitration procedure, which are discussed in detail, infra. The agreement was effective July 1, 1979, to continue in effect until July 3, 1982, and from year to year thereafter unless notice in writing was received by either party from the other not less than sixty (60) days prior to July 3, 1982, or any subsequent anniversary thereof, advising the other party of its desire to terminate, revise, amend, or change the provisions of the agreement.

In late 1981 and early 1982 Quick Air attempted to negotiate changes in the agreement to obtain a wage and benefit reduction, but was unsuccessful in doing so. (Affidavit of John J. Gordon at p. 2.) It appears undisputed that Quick Air then failed or refused to pay its employees the fifteen cent ($.15) raise due them under the agreement on January 1, 1982. On or about January 8, 1982, a grievance was filed by “Robert M. Frye and all Quick Air Frgt. Drivers,” alleging that “Company is in violation of Article 23 of Contract. Requesting all drivers be paid 15c raise due Jan. 1, 1982.” (Affidavit of John J. Gordon, Exhibit B.)

Since the grievance was not resolved by agreement at the local level under Steps 1 and 2 of the grievance procedure, it was submitted under Step 3 to the Ohio Joint State Private Carriage and Miscellaneous Contracts Grievance Committee (the “Joint Committee”). The February, 1982, Minutes of the Joint Committee show the following disposition of the grievance:

Local 413 Columbus (Robert Frye, et al.) v. Quick Air Freight
Rep: —K. Milburn Employer —No representative available
Summary: The parties were paged by the Sgt.-At-Arms. No company representative was available.
Decision: (Unanimous) Based on the fact that the company representative failed to appear, the benefits of the grievance procedure are withdrawn.

(Deposition of Keith L. Milburn, Exhibit 3.)

On or about June 9, 1982, Local 413, on a Joint Committee grievance form, requested clarification of the Joint Committee’s decision. On the same date Mr. Milburn, the union’s business agent, wrote to the President of Quick Air requesting that the company “abide by the Committee decision of grievance no. P-36-2(12) heard on February 25, 1982, Local 413 Columbus (Robert Frye, et al.) vs. Quick Air Freight.” (Deposition of Keith L. Milburn, Exhibit 5.)

It appears that efforts to negotiate a new contract reached an impasse on July 1, 1982, and after expiration of the contract on July 3, 1982, the employees went on strike on or about July 6, 1982.

The August, 1982 minutes of the Joint Committee show that the July 9, 1982, grievance seeking “clarification” of the Committee’s earlier decision was “withdrawn from agenda.”

According to the deposition testimony of Mr. Milburn, he in fact did receive a clarification of the Committee’s earlier decision through a telephone conference with Kevin McDonnell, Assistant Secretary of the Joint Committee who, in response to Mr. Mil-burn’s inquiry, stated:

“Well, it means that beings that the company representative didn’t appear, most of the time they write down here 45-1-G, which means that they lose by default, and you automatically won the grievance,” and “that decision right there means that you can do and take whatever process you need to make them uphold the committee decision.”

(Deposition of Keith L. Milburn at pp. 19-20.)

The grievance and arbitration procedure of the agreement provided that if a grievance were not resolved by the Joint Committee (Step 3), either of the parties could submit the matter to an impartial third person for arbitration (Step 4). According to Mr. Milburn, the union did not pursue arbitration because “step three had already been fulfilled, and the committee had made a decision in our favor. Therefore, there was no step four to go to.” (Deposition of Keith L. Milburn at p. 24.)

B. EXHAUSTION OF CONTRACTUAL REMEDIES.

Quick Air contends that Local 413’s counterclaim should be dismissed on the ground that the union “by electing not to invoke the contractual arbitration procedure ... failed to exhaust the grievance and arbitration procedure mandated by the agreement.” (Plaintiff’s Memorandum in Support of Motion at p. 6.)

It is now well settled that “federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by the employer and union as the mode of redress” before resorting to federal court to enforce the terms of the collective bargaining agreement by an action under section 301 of the Labor Management Relations Act. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1964) (emphasis in original). It is equally well settled that an exception to the exhaustion requirement exists where the effort to proceed with contractual remedies would be futile. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969). In the present case, Local 413 contends that the futility exception is applicable because Quick Air, after unsuccessfully attempting to obtain contract concessions from the union, “ceased following the collective bargaining agreement and specifically discontinued following the grievance procedure and other contractual obligations.” (Affidavit of John J. Gordon at p. 2.) Quick Air disputes this contention, but offers no explanation for its failure to appear and contest the grievance at the third step hearing before the Joint Committee.

Both parties vigorously debate the question of whether the futility exception is applicable in this case. It is clear that the union, on behalf of the drivers and driversdockmen, did process the grievance through Step 3 of the grievance procedure. Quick Air’s contention appears to be that the union should have proceeded to Step 4 and requested arbitration before resorting to enforcement of the contract in federal court. It is undisputed, however, that the employer did not contest the grievance at Step 3, and as counsel for Quick Air admits, “There are no facts to indicate why a representative (of the company) did not appear (at the hearing before the Joint Committee).” (Plaintiff’s Reply Memorandum at p. 7.) Quick Air’s failure to appear may well have been because the contract specifically and unambiguously provided for a fifteen cent ($.15) per hour increase effective January 1, 1982, and it is undisputed that the company did not pay the increased rate. Regardless of the reason why the company did not contest the grievance at Step 3 of the grievance procedure, Quick Air’s claim that the union nevertheless should have requested arbitration under Step 4 is clearly without merit.

The grievance and arbitration procedures contained in the collective bargaining agreement provide, with reference to Step 3:

If the Committee resolves the dispute by a majority vote of those present and voting, such decision shall be binding upon all parties.
The Ohio Joint State Private Carriage and Miscellaneous Contracts Grievance Committee shall have the full power to render a final and binding decision which is not subject to repeal or reopening. In the event the Ohio Joint State Private Carriage and Miscellaneous Contracts Grievance Committee shall deadlock or fail to render a decision, the provisions of Step If shall apply.

(Emphasis added.) Step 4 provides that “[I]f the grievance is not resolved at the Step 3 meeting,” then either of the parties can give notice, within five working days after the meeting, of its intention to submit the matter to an impartial third person for arbitration.

In the present case, the Joint Committee did not deadlock — its decision was unanimous. It also did not fail to render a decision — it decided, as a result of Quick Air’s failure to appear and contest the grievance, that “the benefits of the grievance procedure are withdrawn.” While the import of that decision may not be obvious from the somewhat cryptic language used by the Joint Committee, there is evidence before the Court that the Joint Committee intended to award the grievance to the union by default. (Deposition of Keith L. Milburn at pp. 19-20.) Under such circumstances, the union would have no desire to pursue the matter further, and is not required to do so. The union pursued the grievance through Step 3 of the grievance procedures, at which point Quick Air elected not to appear and contest the grievance. The union prevailed under the terms of the grievance and arbitration provision of the collective bargaining agreement, and as a result, had the right to resort to federal court for enforcement of the company’s obligation under the contract in a section 301 action.

Compulsory submission of industrial disputes to grievance and arbitration procedures is wholly a matter of contract, United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1959); Kennecott Copper Corp. v. International Brotherhood of Electrical Workers, Local Union No. 1081, 339 F.2d 343 (10th Cir.1964). To the extent the union was required to pursue grievance and arbitration procedures under the contract, the Court finds, on the present state of the record, that the union did so and prevailed at Step 3 of the procedure, when the company failed to appear and contest the grievance before the Joint Committee. Quick Air itself referred to the Joint Committee’s decision of February, 1982, as being “the Committee’s award in connection with the Union’s 15c wage grievance.” (Plaintiff’s Memorandum in Support at p. 5.) The award was clearly not adverse to the union and the union was not required under the provisions of the contract to challenge the “final and binding decision” of the Joint Committee by seeking Step 4 arbitration.

Since the union was not required to proceed to Step 4 of the grievance procedure because it prevailed at Step 3, Quick Air’s contention that Local 413’s counterclaim should be dismissed for a failure to exhaust the grievance and arbitration procedures is not well taken.

C. APPLICABLE STATUTE OF LIMITATIONS.

As noted above, Quick Air regarded the Committee’s decision of February, 1982, to be “the Committee’s award in connection with the Union’s 15$ wage grievance” (Plaintiff’s Memorandum in Support at p. 5) and contended that the counterclaim “seeking to enforce that award” was barred by “the 3 months statute of limitation for enforcing arbitration awards set forth in Ohio Revised Code § 2711.13.” (Plaintiff’s Memorandum in Support at p. 5.)

In United Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966), the Supreme Court, in an action brought by a union under section 301 to enforce the terms of a collective bargaining agreement, followed precedent in applying state statutes of limitation for federal causes of action when the federal legislation in question contains no limitations period. Rejecting the temptation to judicially devise a uniform time limitation for section 301 actions, the Court referred to Indiana’s most analogous statute of limitations. Finding that a section 301 action closely resembles an action for breach of contract, but also finding that proof of the breach and the measure of damages in that ease depended upon the existence and duration of separate employment contracts of the individual employees, the Court applied the state’s six year statute of limitations governing actions not exclusively based upon a written contract.

In United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), a discharged employee pursued the grievance procedures of the contract through a binding decision of a joint panel, which upheld the discharge. The employee then brought a “hybrid” section 301 action against his employer and his union. Although the claim against the employer was a section 301 breach of contract claim, the Court noted that the indispensable predicate for such an action by an employee was a demonstration that the union breached its duty of fair representation. In the Court’s view, this made the suit more analogous to an action to vacate an arbitration award than to a straight contract action, Mitchell, 451 U.S. at 62, 101 S.Ct. at 1563, and applied New York's statute requiring such actions be brought within ninety days of the award. Justice Stewart concurred in the judgment but argued that Hoosier did not deal with “hybrid” section 301 actions and that the Court, therefore, was free in Mitchell to depart from state statutes to adopt a uniform limitations period in such actions. Justice Stewart found the six month period contained in section 10(b) of the National Labor Relations Act concerning unfair labor practices to be an analogous federal limitations statute which could be uniformly applied in all “hybrid” cases.

Justice Stewart’s position in Mitchell subsequently prevailed in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), a “hybrid” section 301 action in which the Court concluded, in retrospect, that in such eases state limitations statutes failed to provide the employee with enough time to vindicate his rights under section 301 and the fair representation doctrine. To remedy this shortcoming, the Supreme Court adopted the six month statute of limitations for allegations of unfair labor practices provided in section 10(b) of the National Labor Relations Act as the governing limitations period in “hybrid” section 301 actions.

In DelCostello, the Supreme Court carefully distinguished Hoosier based on the nature of the cause of action:

Auto Workers v. Hoosier was a straightforward suit under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, for breach of a collective bargaining agreement by an employer. Unlike the present case, Hoosier did not involve any agreement to submit disputes to arbitration, and the suit was brought by the union itself rather than by an individual employee. We held that the suit was governed by Indiana’s six-year limitations period for actions on unwritten contracts; we resisted the suggestion that we establish some uniform federal period.

DelCostello, 103 S.Ct. at 2289. The Court emphasized that a “hybrid” action— brought by an employee who has exhausted the grievance and arbitration procedures and challenges the adverse result by suing the employer under section 301 and the union for lack of fair representation in the grievance and arbitration procedure — is a different type of action than one for breach of contract brought by the union:

The [hybrid] suit is thus not a straightforward breach of contract suit under § 301, as was Hoosier, but a hybrid § 301/fair representation claim, amounting to “a direct challenge to ‘the private settlement of disputes under [the collective bargaining agreement]’ ” Mitchell, 451 U.S. at 66 [101 S.Ct. at 1566] (Stewart, J., concurring in the judgment), quoting Hoosier, 383 U.S. at 702 [86 S.Ct. at 1111]. Also, unlike the claim in Hoosier, it has no close analogy in ordinary state law.

DelCostello, 103 S.Ct. at 2291.

In retrospect, the Court found in DelCostello that the analogous state statutes applied by Mitchell in hybrid actions suffered “from flaws, not only of legal substance, but more important, of practical application in view of the policies of federal labor law and the practicalities of hybrid § 301/fair representation litigation.” DelCostello, 103 S.Ct. at 2291. An employee in a hybrid action is often unsophisticated in collective bargaining matters but is required to attempt to evaluate, within the limitations period, the adequacy of the union’s representation in the grievance and arbitration proceedings and obtain counsel for a section 301 action. Consequently, the Supreme Court concluded in DelCostello that the extremely short periods provided by state statutes governing vacation of arbitration awards — usually ninety days — were too short to give an employee a satisfactory opportunity “to vindicate his rights under § 301 and the fair representation doctrine.” DelCostello, 103 S.Ct. at 2291.

Neither Mitchell nor DelCostello detracted from the basic premise of Hoosier. As the Court said in DelCostello:

We stress that our holding today should not be taken as a departure from prior practice in borrowing limitations periods for federal causes of action, in labor law or elsewhere. We do not mean to suggest that federal courts should eschew use of state limitations periods anytime state law fails to provide a perfect analogy. See, e.g., Mitchell, 451 U.S. at 61 n. 3 [101 S.Ct. at 1563 n. 3]. On the contrary, as the courts have often discovered, there is not always an obvious state-law choice for application to a given federal cause of action; yet resort to state law remains the norm for borrowing of limitations periods.

DelCostello, 103 S.Ct. at 2294.

The considerations that prompted the Supreme Court in DelCostello to forsake analogous state statutes in “hybrid” cases do not apply to actions like the counterclaims in the present case, which are straightforward section 301 actions brought by the union on a claim that the employer has breached a collective bargaining agreement. The contractual counterclaims are very similar to the straightforward section 301 breach of contract action involved in Hoosier. Like Hoosier, the counterclaims are asserted by the union itself — not by an unsophisticated employee ■ —and, like Hoosier, the counterclaims do not require allegations of unfair representation as a predicate to the assertion of the claimed breaches of the collective bargaining agreement. The only distinction is that the claims asserted in the present case, apparently unlike those in Hoosier, are subject to the grievance and arbitration procedures of the collective bargaining agreement. This distinction only effects the determination of the most analogous state statute to be applied. Inasmuch as the union, on behalf of the aggrieved employees, had to pursue the grievance and arbitration proceedings of the collective bargaining agreement before asserting its claimed breaches of the collective bargaining agreement, the most analogous state statute is one governing actions to confirm arbitration awards, not statutes governing ordinary breach of contract actions.

Quick Air, after correctly distinguishing DelCostello, argues that the most analogous limitations periods available are those set forth in the federal arbitration statutes or Ohio’s arbitration statutes. The time periods in both sets of statutes are, coincidentally, the same. Both the federal statute, 9 U.S.C. § 9, and the state statute, O.R.C. § 2711.09, provide for a one year period for a party to apply to a court to confirm an arbitration award. Both the federal statute, 9 U.S.C. § 12, and the state statute, O.R.C. § 2711.13, provide for a period of three months for any notice of a motion to vacate, modify, or correct an award. It is not necessary to choose between the federal statutes and the state statutes in this case, however, federal courts generally refuse to borrow the limitations periods set forth in the federal arbitration act. Derwin v. General Dynamics Corp., 719 F.2d 484 (1st Cir.1983); San Diego District Council of Carpenters v. G.L. Cory, Inc., 685 F.2d 1137 (9th Cir.1982); Edwards v. Sea-Land Service, Inc., 678 F.2d 1276 (5th Cir.1982), reh’g denied, 685 F.2d 1385 (5th Cir.1982), vacated on other grounds, 462 U.S. 1127, 103 S.Ct. 3104, 77 L.Ed.2d 1360 (1983); Service Employees International Union, Local 36 v. Office Center Services, Inc., 670 F.2d 404 (3rd Cir.1982); Sine v. Local No. 972, International Brotherhood of Teamsters, 644 F.2d 997 (4th Cir.), cert. denied, 454 U.S. 965, 102 S.Ct. 507, 70 L.Ed.2d 381 (1981); Chauffeurs Local 135 v. Jefferson Trucking Co., 628 F.2d 1023 (7th Cir.1980), cert. denied, 449 U.S. 1125, 101 S.Ct. 942, 67 L.Ed.2d 111 (1981).

Quick Air urges the Court to apply the three month limitation period found in the federal act and the Ohio act for actions seeking to “vacate, modify or correct” an award. It is clear, however, that Local 413 is not challenging the decision of the Joint Committee: according to the testimony of Mr. Milburn “the committee had made a decision in our favor.” (Deposition of Keith L. Milburn at p. 24.) The most analogous state statute to apply in an action by a union against an employer, in which the dispute arising under the collective bargaining agreement progressed through a binding stage of the grievance and arbitration procedures and ended in a decision favorable to the union, is Ohio’s statute governing confirmation of arbitration awards. O.R.C. § 2711.09 sets a limitations period of one year for a party to seek confirmation of an award by a court. That period of time, in the opinion of the Court, complies not only with the established practice of borrowing limitations periods for federal causes of action where Congress has not included a limitation period in the statute itself, but it also is a reasonable period as a practical matter, consistent with national labor policies. Derwin v. General Dynamics Corporation, 719 F.2d 484 (1st Cir.1983).

Local 413’s counterclaim was filed well within one year from the February, 1982, decision of the Joint Committee and, therefore, is not barred by the governing statute of limitations.

III. LOCAL 413’S COUNTERCLAIM BASED ON AN ALLEGED FAILURE OF QUICK AIR TO PROVIDE AN INSURANCE PROGRAM EQUAL TO THE PROGRAM ADMINISTERED BY THE OHIO HIGHWAY DRIVERS’ WELFARE FUND.

A. FACTS.

According to affidavits filed by Local 413, Quick Air proposed during the negotiations that culminated in the collective bargaining agreement dated November 26, 1979, that the insurance program for employees be removed from the Ohio Highway Drivers Welfare Fund and reassigned to another company. In connection with that request, Paul A. Smith, Vice-President of Quick Air, wrote the following letter:

TO: ALL DRIVERS
FROM: P.A. Smith
SUBJECT: HEALTH INSURANCE PROGRAM
This will clarify the agreement reached during recent contract negotiations concerning your Health Insurance Program. The Company has guaranteed that it will substitute an insurance program underwritten and administered by an A+ rated insurance company which will be equal to or surpass the current program administered by the Ohio Highway Driver’s Welfare Fund. It further agreed that the substituted plan will equal any improvements effected in the comparable Ohio Highway Driver’s Welfare Fund when annually updated during the new contract period.
The Company will place the new plan in effect as soon as it is finalized by the insurance company and approved by your Union representatives, probably within the next two months, but before December 31, 1979. Your current plan will continue until that time,
cc: Teamsters Local 413 Members Negotiating Committee
Paul A. Smith
Vice President

Under the provisions of the Ohio Drivers’ Welfare Fund, referred to in Quick Air’s letter to its drivers, an employee who retires from work continues to receive full medical coverage for the employee and the employee’s spouse, with the exception that dental, vision and life benefits are withdrawn. This coverage continues beyond the expiration of the contract. According to Dorothy J. Froehlich, an employee of Local 413 in charge of administering health and welfare programs:

In other words, when an individual retires with a company covered by Ohio Highway Drivers Welfare Fund, on the date of retirement that person is vested with medical coverage in spite of subsequent developments between the company and the union regarding collective bargaining agreement or if the company remains in business.

(Affidavit of Dorothy J. Froehlich at p. 2.)

In reliance upon the guarantee of Quick Air that a substituted program would be equal to or surpass the program administered by the Ohio Highway Drivers' Welfare Fund, the union agreed to the substitution of insurance plans. Article 13, Section 1 of the collective bargaining agreement executed on November 26, 1979, provides as follows:

Effective November 1, 1979, the Company shall provide the comprehensive Health/Welfare plan designed by the Midland Mutual Life Insurance Company, a copy of which is identified as Appendix 1 hereto, at no cost to each of the regular employees on the Seniority Roster. This includes the Comprehensive Dental Care Program submitted by Delta Dental Plan of Ohio, Inc., which is incorporated as intregal [sic] to Appendix 1 hereto.

Following the expiration of the contract on July 3, 1982, Quick Air informed Local 413 by letter of August 6, 1982, that the company “will be terminating the Midland Mutual Life Insurance Company Health/Welfare Plan, referred to in Article 13, and will be picking up another policy from a different insurance carrier at lower benefit levels.” (Deposition of Keith L. Milburn, Exhibit 6.) These lower benefit levels apparently included termination of all benefits for retirees. Thus Local 413 alleges in the second counterclaim that Quick Air “has refused to comply with the Collective Bargaining Agreement by failing, neglecting, and refusing to provide for medical coverage on those persons who retired under the contract executed on November 26, 1979.”

B. EXHAUSTION OF CONTRACTUAL REMEDIES.

Quick Air contends that Local 413’s counterclaim should be dismissed on the ground that the union did not resort to the grievance and arbitration procedures of the collective bargaining agreement before filing its section 301 counterclaim in this Court.

Local 413 asserts this counterclaim on behalf of retirees who are no longer employees of Quick Air. Retirees are an entirely separate class from active employees and possess few of the rights accorded active employees under federal labor law. The employer has no duty to bargain with the union regarding retired employees and may unilaterally modify benefits due them under a collective bargaining agreement without committing an unfair labor practice. Chemical Workers v. Pittsburgh Plate Glass, 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971). This does not mean, however, that when a union bargains for benefit due retirees — as Local 413 claims it did in this case — that the retirees are without protection. As the Supreme Court stated in Pittsburgh Plate Glass, the retirees have a federal remedy under section 301 for breach of contract if the bargained for benefits are unilaterally terminated by the former employer. Pittsburgh Plate Glass, 404 U.S. at 181 n. 20, 92 S.Ct. at 398 n. 20. It is equally clear that the union has standing to bring such an action on behalf of those retirees: as a signatory to the contract, a union can bring an action for the third party beneficiaries. Auto Workers of America v. Yard-Man, Incorporated, 716 F.2d 1476, 1486 (6th Cir.1983).

It was not apparent from the record in Pittsburgh Plate Glass, whether the collective bargaining agreement provided for arbitration that would have been applicable to the retirees’ dispute in that case, consequently, the Supreme Court expressed no opinion on the relevance of such a provision in this type of an action. Pittsburgh Plate Glass, 404 U.S. at 188 n. 24, 92 S.Ct. at 402 n. 24. Compulsory submission of industrial disputes to grievance and arbitration procedures is wholly a matter of contract, United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1959); Kennecott Copper Corp. v. International Brotherhood of Electrical Workers, Local No. 1081, 339 F.2d 343 (10th Cir.1964), and the scope and applicability of grievance and arbitration provisions depend upon the language of the agreement.

In the present case, the grievance and arbitration provisions in the contract specifically refer to grievances “by the aggrieved employee.” The “aggrieved employee” must present his complaint first orally “to his supervisor” who then “orally inform(s) the employee of his decision.” If the dispute is not resolved, “the aggrieved employee and the Union Steward” discuss the matter with the supervisor who advises “the employee” and the Steward of his decision. If the employee is not satisfied with that result, the “aggrieved employee” must then reduce his grievance to writing and proceed with further steps under the procedure. It is abundantly clear that the grievance and arbitration procedure of the contract between Quick Air and Local 413 is designed for and limited to disputes arising between “employees” and management and does not encompass disputes between retirees and management. The plain language of the grievance procedure makes this apparent. As the Supreme Court said in Pittsburgh Plate Glass, “the ordinary meaning of “employee” does not include retired workers; retired employees have ceased to work for another for hire.” 404 U.S. at 168, 92 S.Ct. at 392.

In addition to the Court’s conclusion that the ordinary meaning of “employee” excludes retirees from coverage by the grievance procedure provisions, it is apparent that the procedures themselves do not contemplate that claims will be brought by retirees of the company. For example, the grievance procedures state that within “five (5) working days” after the event occurs on which the grievance is based, the employee “shall first present the same orally to his supervisor.” Retirees, of course, have no supervisors. Under the grievance procedures, if the aggrieved employee and his supervisor do not resolve the dispute, “the aggrieved employee and the Union Steward” then discuss the matter with the supervisor. A retiree, however, is not a member of the bargaining unit represented by the union steward, and it is questionable whether there is any obligation or duty on the part of the union to represent retirees, even when the union has negotiated benefits for those retirees in a collective bargaining agreement. Yard-Man, 716 F.2d at 1486 n. 16.

It is not surprising that the language of the grievance procedure demonstrates that it was confined to the resolution of disputes between active employees and management. The agreement by management for the resolution of grievances through arbitration “is the quid pro quo for an agreement not to strike,” Textile Workers v. Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 917, 1 L.Ed.2d 972 (1956), and it is only the active employees who possess this ultimate weapon in collective bargaining. The federal statutes concerning the collective bargaining process and the resolution of industrial disputes are confined to the relationship between active employees and management and not those between retirees and the company:

The inequality of bargaining power that Congress sought to remedy was that of the “working” man, and the labor disputes that it ordered be subjected to collective bargaining were those of employers and their active employees. Nowhere in the history of the National Labor Relations Act is there any evidence that retired workers are to be considered as within the ambit of the collective-bargaining obligations of the statute.

Pittsburgh Plate Glass, 404 U.S. at 166, 92 S.Ct. at 391.

Retirees, sitting below the salt at the collective bargaining table, beyond the pale of legislation governing the relationship between active employees and management, are reduced to reliance upon whatever rights they may have as third party beneficiaries of the collective bargaining agreement. In asserting those rights, however, they are not required to resort to the procedures in the agreement designed to resolve disputes of the active employees to avoid strikes. Indeed, as the Sixth Circuit Court of Appeals said in Yard-Man:

Unlike the active employees, retirees face no restrictions whatever in seeking fulfillment of contractual benefits directly from their former employer.

Yard-Man, 716 F.2d at 1484-85. In the same decision, although dictum, the Court said:

... the very rationale for creating a duty of fair representation — the exclusivity of contractual grievance and arbitration remedies — does not exist in the context of retirees who, without restraint, may litigate their disputes with their former employers directly under § 301.

Yard-Man, 716 F.2d at 1486 n. 16.

The Sixth Circuit’s strong indication in Yard-Man that retirees are not compelled to resort to the grievance and arbitration proceedings of a collective bargaining agreement before proceeding in federal court in a section 301 action for breach of contract is reinforced by its reversal of the District Court in Metal Polishers Local No. 11 v. Kurz-Kasch, Inc., 538 F.Supp. 368 (S.D.Ohio 1982). In that case, the employer, after the collective bargaining agreement expired and the employees went on strike, terminated the medical coverage provided for by the agreement. The union brought an action challenging the termination of that coverage as to the retired employees. The District Court ordered the parties to proceed with arbitration and, following the arbitrator’s decision, the court dismissed the federal action. The Court of Appeals reversed and remanded the case to the District Court for further proceedings “consistent with the determination ... that the interpretation of the Collective Bargaining Agreement with respect to the rights of the plaintiffs was not subject to the grievance and arbitration procedures of the contract.” Kurz-Kasch, 538 F.Supp. at 370.

A plain reading of the collective bargaining agreement between Quick Air and Local 43, in light of the sharp distinction drawn in both statutory and case law between active employees and retirees, leads the Court to conclude that the retirees’ claim in the present case that the employer breached the agreement was not subject to the grievance and arbitration procedures of the contract. Therefore, Quick Air’s contention that Local 413’s counterclaim should be dismissed for a failure to exhaust the grievance and arbitration procedures of the contract is not well taken.

C. APPLICABLE STATUTE OF LIMITATIONS.

Quick Air contends that the three month limitation contained in Ohio’s statute for actions to “vacate, modify or correct” an arbitration award should be applied to Local 413’s counterclaim brought on behalf of the retirees. Inasmuch as the retirees were subject to neither the benefits nor the burdens of the grievance and arbitration procedures of the contract covering the active employees of Quick Air, Ohio’s statutes dealing with arbitration awards are clearly not the most analogous or appropriate state statutes of limitation. As the Supreme Court noted in Pittsburgh Plate Glass, the remedy for retirees whose contractual benefits have been affected by unilateral action of their former employee is a section 301 action for breach of contract. Pittsburgh Plate Glass, 404 U.S. at 181 n. 20, 92 S.Ct. at 398 n. 20. This is exactly the type of action asserted by Local 413’s counterclaim: it is not a “hybrid” section 301 action like DelCostello; instead it is a straightforward action for breach of contract — very similar to the action brought in Hoosier.

In Hoosier, the employer terminated the employment of union members and failed to pay any of the accumulated vacation pay to which the employees were entitled under the terms of the collective bargaining agreement. As the Court appropriately noted:

The present suit is essentially an action for damages caused by an alleged breach of an employer’s obligation embodied in a collective bargaining agreement. Such an action closely resembles an action for breach of contract cognizable at common law.

Hoosier, 383 U.S. at 705 n. 7, 86 S.Ct. at 1113 n. 7. Accordingly, the Supreme Court applied Indiana’s statute of limitations governing actions based on breach of contract. Inasmuch as proof of the breach and of the measure of damages (vacation pay) depended upon the existence and duration of individual employment agreements, the Court found that it was more appropriate to apply the Indiana statute governing contracts not in writing rather than the Indiana statute governing contracts in writing. The Court noted, however, that

There may, of course, be § 301 actions that can only be characterized fairly as based exclusively on a written agreement.

Hoosier, 383 U.S. at 707, 86 S.Ct. at 1114.

If the counterclaim brought on behalf of the retirees is characterized as based exclusively on the written collective bargaining agreement, the Ohio statute governing actions on written contracts, O.R.C. § 2305.06, which provides a fifteen year period of limitations, is the most analogous state statute. If the counterclaim is based on a contract not exclusively in writing or upon a liability created by statute (e.g., section 301), Ohio’s six year statute, O.R.C. § 2305.07, is the applicable statute. If characterized as an action based on allegedly fraudulent conduct of Quick Air, the Ohio statute providing a four year statute of limitations for fraud and injuries not arising on contract, O.R.C. § 2305.09, is applicable. It is not necessary to select, in this case, the most analogous of these state statutes, because the counterclaim in the present case was timely under any of these state statutes and, therefore, was not barred by any analogous statute of limitations.

D. OTHER ALLEGED DEFENSES TO THE COUNTERCLAIM.

Quick Air asserts other arguments in support of its motion to dismiss or for summary judgment on the counterclaim, which, in the context of the motion and on the present state of the record, can be resolved rather quickly.

1. The argument that the collective bargaining agreement does not provide for insurance coverage for retirees.

Initially, it should be noted that the entire collective bargaining agreement has not been presented to the Court. Article 13, Section 1, dealing with health insurance, refers to the plan designed by the Midland Mutual Life Insurance Company, a copy of which was apparently attached to the original agreement as Appendix 1 but has not been submitted to the Court. Even if that plan does not provide coverage to retirees, the thrust of the counterclaim is the alleged breach by Quick Air of its guarantee that the Midland Mutual plan would be equal to or surpass the plan of the Ohio Highway Drivers’ Welfare Fund, which apparently did provide such coverage to retirees. In short, this is not a case in which the Court must attempt to interpret and construe ambiguous language in the agreement to determine whether it was intended to provide such coverage to retirees after the contract had expired, see Upholsterers Union v. American Pad & Textile Co., 372 F.2d 427 (6th Cir.1967); Metal Polishers Local No. 11 v. Kurz-Kasch, 538 F.Supp. 368 (S.D.Ohio 1982); instead, it is a case in which it is alleged that the company expressly agreed to provide such coverage but breached its written guarantee to do so.

2. The arguments that Quick Air was legally entitled to terminate insurance coverage after an impasse occurred in the bargaining, the agreement expired, and the employees went on strike.

Quick Air’s arguments in this regard miss the point of the counterclaim. Whatever rights Quick Air had to terminate the insurance provided to the active employees after the contract expired and those employees went on strike, the thrust of the counterclaim is that Quick Air guaranteed that the insurance provided would be equal to a comparable plan whereby, upon retirement, an employee “is vested with medical coverage in spite of subsequent developments between the company and the union regarding collective bargaining or if the company remains in business.” (Affidavit of Dorothy J. Froehlich at p. 2.) It is well recognized, of course, that a retiree’s vested benefits may extend beyond the term of the collective bargaining agreement. Yard-Man, 716 F.2d 1476. Depending upon the evidence presented, those employees who retired during the term of the collective bargaining contract in the present case may well be entitled to the continued coverage allegedly promised by their employer. Neither the Midland Mutual plan nor the Highway Drivers’ Fund plan is presently before the Court, and the Court does not have all of the evidence concerning the alleged promise of Quick Air; therefore, the Court expresses no opinion regarding the merits of the counterclaim under consideration. The Court is of the firm opinion, however, that the allegations of the counterclaim, the affidavits submitted by the union and the deposition testimony and exhibits of Mr. Milburn compel the conclusion that Quick Air’s motion to dismiss the counterclaim or for summary judgment thereon must be denied.

For the reasons stated above, plaintiff’s motion to dismiss, or in the alternative, for summary judgment is DENIED.

IT IS SO ORDERED.

      . On November 24, 1982, the parties filed a stipulation dismissing the individual defendants.

      . Although the collective bargaining agreement on which the counterclaims are based is not the agreement on which Quick Air’s complaint is based, no issue has been raised concerning the procedural propriety of the two counterclaims. Fed.R.Civ.P. 15.

      . Although not a part of the record now before the Court, it is assumed that the union or the company served the sixty day notice prior to July 3, 1982.

      . In DelCostello, the Supreme Court stated in a footnote that "even if this action were considered as arising solely under section § 301, the objections to use of state law and the availability of a well-suited limitations period in § 10(b) would call for application of the latter rule,” DelCostello, 103 S.Ct. at 2287 n. 12. This note referred to the borrowing of a federal limitations period from a general federal statutory scheme when considering a judicially implied cause of action arising from that federal statutory scheme — the position urged by Justice Stewart in Mitchell and ultimately adopted by the Court in DelCostello. The Supreme Court made this statement in the context of its preceding statement in the footnote that "hybrid” actions "are amalgams, based on both an express statutory cause of action and an implied one,” and the Supreme Court’s footnote should not be taken as an indication that the six month period of section 10(b) is to be applied to all section 301 actions. Although a hybrid action is an amalgam of a statutory action and an implied action, the same considerations that call for a "well-suited limitations period" of six months rather than a state statute of ninety days — the need of an unsophisticated employee to evaluate his claim and retain counsel — would still be present even if the hybrid action is considered more in the nature of a section 301 action than an implied action. Extremely short state statutes of limitation are simply not suitable in such cases. A straightforward section 301 action by the union based on a breach of contract, however, is not such an "amalgam”; it does not involve any breach of the union’s duty of fair representation as a predicate to bringing the action and the analogy of section 10(b) and the unfair labor practice limitation to the union’s breach of its duty is simply not present in such a case. In the straightforward breach of contract case, therefore, the most analogous statutes are those state statutes governing breach of contract, as the Supreme Court found in Hoosier. When the contract requires resort to the grievance and arbitration procedure, a breach of contract action by the union involving an award in favor of the union would be most analogous to an action seeking to confirm an arbitration award. In the latter case, application of the normally shorter periods contained in state arbitration statutes also is consistent with federal labor policies emphasizing the importance of utilizing grievance and arbitration procedures, as well as the speedy resolution of disputes that have been subjected to those procedures.

      . As Quick Air argues, "Obviously, the instant dispute does not involve an employee’s claim that the Union breached its duty of fair representation and, thus, DelCostello clearly does not apply.” (Reply Memorandum, p. 3.) As discussed infra, this Court agrees.

      . The Court emphasizes that its opinion in this respect is limited to the facts and circumstances of this particular case. Under different circumstances, the Ohio statutes in question could conceivably be found to be not analogous or unsatisfactory vehicles for enforcement of federal law. DelCostello, 103 S.Ct. at 2294. See McPeek v. Dayton Forging & Heat Treating Co., 574 F.Supp. 300, 303-04 dictum (S.D.Ohio 1983).

      . The attachment identified as Appendix 1 has not been submitted to the Court by either party at this time.