UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
May 23, 1996
THOMAS MORIARTY, etc., Plaintiff,
GLUECKERT FUNERAL HOME, LTD., Defendant.
The opinion of the court was delivered by: SHADUR
MEMORANDUM OPINION AND ORDER
Trustee Thomas J. Moriarty ("Moriarty"), on behalf of the Trustees of Local Union No. 727 I.B.T. Pension Trust and the Trustees of Teamsters Local Union No. 727 Health and Welfare Trust (collectively "Funds"), has sued Glueckert Funeral Home, Ltd. ("Glueckert") under Labor Management Relations Act ("LMRA") § 301 (29 U.S.C. § 185) and Employee Retirement Income Security Act ("ERISA") § 502(a)(3) (29 U.S.C. § 1132(a)(3))
to collect delinquent employer contributions allegedly owed by Glueckert to Funds. Both sides have filed summary judgment motions under Fed. R. Civ. P. ("Rule") 56, with Moriarty seeking partial summary judgment only as to liability (and not as to damages) and with Glueckert asking for a total victory as a matter of law.
At this point the cross-motions are fully briefed, with both sides having complied with this District Court's General Rule ("GR") 12(M) and 12(N) (rules designed to facilitate the resolution of Rule 56 motions by highlighting the existence or nonexistence of factual disputes).
For the reasons stated in this memorandum opinion and order, both motions are denied.
Summary Judgment Standards
Familiar Rule 56 principles impose on a party seeking summary judgment the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For that purpose this Court is "not required to draw every conceivable inference from the record--only those inferences that are reasonable"--in the light most favorable to the non-moving party ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) and cases cited there). Where as here cross-motions are involved, it is necessary to adopt "a dual perspective--one that this Court has often described as Janus-like--that sometimes involves the denial of both motions" ( Camelot Care Ctrs., Inc. v. Planters Lifesavers Co., 836 F. Supp. 545, 545 (N.D.Ill. 1993)).
As the later discussion shows, in this instance that dual perspective does indeed give rise to material issues of fact, precluding summary judgment in either direction. What follows in the Background section is limited to an undisputed version of events, while other facts that fit better into the substantive legal discussion will be included later in this opinion.
In 1970 John Glueckert, Sr. ("John Sr.") purchased an already established funeral home, which he has incorporated as Glueckert Funeral Home, Ltd. (P. 12(N) P1). By 1988 John Sr. was considering becoming a member of an association of like businesses because (among other reasons) he wanted to remain current in developments in the funeral home industry and to keep apprised of governmental regulations affecting the industry. One of the associations he considered was the Funeral Directors Services Association ("FDSA"), a multi-employer association comprising some 250 members (P. 12(N) PP3-4).
On July 8, 1988 John Sr. received a letter from then FDSA Executive Director Moriarty outlining the services that FDSA provided to its members (P. 12(N) P13). And in late 1988 or early 1989 Moriarty met with John Sr. and Glueckert manager John Glueckert, Jr. ("John Jr.") to discuss Glueckert's potential FDSA membership (P. 12(N) PP15-16). John Sr. then filled out a membership application in which Glueckert agreed to be bound by FDSA's Constitution, By-Laws and Rules and Regulations (P. 12(N) PP19-20; P. Ex. N). On March 21, 1989 Moriarty sent John Sr. a letter advising that Glueckert's application had been accepted (P. Ex. O). John Sr. then filled out an FDSA membership record card (P. 12(N) P22; P. Ex. N).
FDSA furnishes a wide variety of services to its members. Those include its running continuing education programs, providing updates as to developments in rules and regulations affecting the funeral home industry and negotiating collective bargaining agreements with the Auto Livery Chauffeurs, Embalmers, Funeral Directors, Apprentices, Ambulance Drivers and Helpers, Taxicab Drivers, Miscellaneous Garage Employees, Car Washers, Greasers, Polishers and Wash Rack Attendants Union, Local No. 727, I.B.T. ("Union") on behalf of FDSA's employer-members (P. 12(N) PP4-11; D. 12(N) P7).
Funds are employee benefit plans within the meaning of ERISA (Section 1002(3)) and are third-party beneficiaries of a series of collective bargaining agreements ("CBAs") entered into between FDSA and Union (D. 12(N) PP2,7-9). Moriarty is a Trustee and fiduciary of Funds, and between 1967 and 1994 he negotiated such CBAs on behalf of FDSA (D. 12(N) PP 5,10).
Before and since Glueckert became an FDSA member there have been (and still are) in force a series of such CBAs between FDSA and Union (D. 12(N) P9). Those agreements, which are stated to be entered into by FDSA on behalf of all of its employer/members, provide that each member is obligated to contribute to Funds if it employs employees who perform certain covered job classifications--such as embalmers, funeral directors and auto livery chauffeurs (D. 12(N) PP10.1-.3, 13, 19).
Glueckert has in fact employed individuals who perform embalming, funeral directing and auto livery chauffeur services (D. 12(N) P23,25), but it has never notified Funds that it employed such individuals and has never made any contributions to Funds during its FDSA membership (D. 12(N) PP14,17,28,). And Funds has never made any request for contributions, nor until September 1994 did it affirmatively inform Glueckert that it may be obligated to pay them. At that time Funds made a demand for payment (P. 12(N) PP47-49, 51-52; John Sr. Aff. P41 ). After learning that FDSA thus wished to bind it to the results of the CBAs, Glueckert resigned from FDSA (P. 12(N) P55).
Before this opinion sets out the relevant law governing this dispute in detail, it must first clear away some cobwebs by dealing with an issue to which Moriarty devotes large portions of his memoranda. Only then can the discussion turn to the truly dispositive issue: whether FDSA had authority (either actual or apparent) to bind Glueckert to CBAs with Union so that Glueckert is obligated to Funds, the third-party beneficiaries of those agreements.
Moriarty Mem. 11 seeks to call to his aid Section 1145
and cases interpreting that section (most notably Central States, S.E. and S.W. Areas Pension Fund ["Central States Fund"] v. Gerber Truck Serv., Inc., 870 F.2d 1148, 1149 (7th Cir. 1989) (en banc)
and Robbins v. Lynch, 836 F.2d 330 (7th Cir. 1988)) to mean that a "pension or welfare fund is like the holder in due course in commercial law. . .entitled to enforce the writing without regard to understandings or defenses applicable to the original parties" ( Gerber Truck, 870 F.2d at 1149) and also that ( id. at 1153):
If the employer simply points to a defect in its formation--such as fraud in the inducement, oral promises to disregard the text, or the lack of majority support for the union and the consequent ineffectiveness of the pact under labor law--it must still keep its promise to the pension plans.
From those premises Moriarty R. Mem. 14 urges that Glueckert is foreclosed from arguing that FDSA had no authority to bind it to the FDSA-Union CBAs.
But that contention is fundamentally misguided, because for Section 1145 to come into play there must at least be some basis for binding the employer to the CBA in the first place (the employer either signed the agreement or authorized an association to do so or is considered by law to have granted such authority). Indeed, by its terms Section 1145 applies only to an "employer who is obligated to make contributions" (emphasis added). And see Sullivan v. Cox, 78 F.3d 322, 324-25 (7th Cir. 1996):
ERISA essentially imposes a federal obligation on employers who contractually agree to contribute to employee pension plans.
* * *
Section 1145 only creates a federal ERISA obligation for employers who are obligated to make contributions even absent the statute--in other words, those who are obligated under state law.
Thus the principles quoted from Robbins and Gerber Truck (and the like pronouncements and consequent rulings in other cases relied on by Moriarty) are not in point, because in each of those cases the employer had affirmatively agreed to bind itself to a CBA either by signing the agreement itself ( Gerber Truck, 870 F.2d at 1150; see also two other cases cited by Moriarty, Central States Fund v. Joe McClelland, Inc., 23 F.3d 1256, 1257-58 (7th Cir. 1994) and Laborers' Pension Fund v. Concrete Structures of the Midwest, Inc., 999 F.2d 1209, 1210 (7th Cir. 1993)) or by clearly manifesting an intent to be bound by such an agreement ( Robbins, 836 F.2d at 332). In such situations courts do not of course allow an employer to assert understandings or defenses that might be applicable to the original parties to defeat a pension or welfare fund's claim on an otherwise valid commitment (see Gerber Truck, 870 F.2d at 1149, and numerous cases cited id. n.1).
But here the crucial question is the more fundamental (and different) one of whether there is any basis for obligating the employer in the first place (see Wenzel v. Jeff Parking Corp., Nos. 93 Civ. 5071 (AJP) and 94 Civ. 0831 (AJP), 1995 U.S. Dist. LEXIS 5815, 1995 WL 258055, at *4 (S.D.N.Y. May 3)).
And because Glueckert admittedly did not itself enter into any agreement with Union or Funds, the only way that it can be obligated to Funds is if FDSA had the authority--either actual or apparent--to bind Glueckert to such an obligation.
So the controlling legal issue here lies in the familiar territory of agency law: Any employer is bound by an agreement entered into by a multiemployer association if the association had actual or apparent authority to enter into the agreement on that employer's behalf ( Trustees of the UIU Health and Welfare Fund v. New York Flame Proofing Co., 828 F.2d 79, 82-84 (2d Cir. 1987); Crane Sheet Metal, Inc. v. NLRB, 675 F.2d 256, 258-59 (10th Cir. 1982); Bevona v. Deer Head Chem. Indus., Inc., No. 90 Civ. 3973 (RJW), 1991 U.S. Dist. LEXIS 9994, 1991 WL 146327, at *3 (S.D.N.Y. July 19); Shearon Envtl. Design Co., Inc. v. Laborers' Dist. Council, No. Civ. A. 93-1317, 1993 U.S. Dist. LEXIS 16279, 1993 WL 476232, at *5 (E.D.Pa. Nov. 18). In the usual case the question posed here never arises, for employers most often expressly authorize an association to negotiate on their behalf (see, e.g., International Union of Operating Eng'rs, Local 150 v. G. Bliudzius Contractors, Inc., 730 F.2d 1093, 1096-97 (7th Cir. 1984) (per curiam)). But here (for reasons that will be seen) it cannot be decided as a matter of law whether FDSA was or was not authorized to enter into agreements with Union on Glueckert's behalf so as to obligate Glueckert to make contributions to Funds.
As familiar as the operative standards of agency law may be (or at least as familiar as they were when agency was a valuable--in some ways the most valuable--course in the law schools' mandatory curriculum), it is worth a few moments to place those standards in the special matrix of employers and employer associations. That is particularly true given the parties' limited attention to the alternative of apparent authority (perhaps that inattention is less surprising on Glueckert's part than on Funds', which clearly have a difficult row to hoe in establishing actual authority). This opinion turns to the subject of agency in the employer-employer association context, then, before applying the relevant standards to this case.
For an employer to be found to have granted a multiemployer association actual authority, it must have performed an act evidencing an "unequivocal intention to be bound" ( New York Flame Proofing, 828 F.2d at 82-83; Wenzel, 1995 WL 258055, at *4-*5)).
Although that often takes the form of an express delegation of authority, the requisite intent can also be inferred from acts that evidence such an intent--see, e.g., Robbins, 836 F.2d at 332 (intent is to be discerned from "visible indicators," so that "private intent is irrelevant") and Restatement (Second) of Agency ("Restatement") § 26 (1958), which teaches that authority can be created by "conduct of the principal which, reasonably interpreted, causes the agent to believe that the principal desires him so to act on the principal's account," and id. cmt. a, which says that "the manifestation and not the intention of the principal is important."
So while "mere membership in an employers' association, without more, does not necessarily evidence an unequivocal intention to be bound by the collective agreements it negotiates" ( New York Flame Proofing, 828 F.2d at 83 (citation omitted)), the same decision goes on immediately to explain (id.):
However, if the "principal, if not virtually sole activity" of an association is to negotiate collective bargaining agreements on behalf of its members and if the longstanding, universally observed and universally known custom is that members are bound by such agreements, acquiring membership in that organization does constitute an unequivocal statement as to its actual authority to bind the new member.
And see Restatement § 26 cmts. b-e.
Although as already indicated the parties did not address this further alternative in any detail, Glueckert can also be obligated to Funds if it clothed FDSA with apparent authority to act on its behalf. That doctrine would apply if Union reasonably believed that Glueckert had delegated authority to FDSA to enter into agreements on its behalf ( New York Flame Proofing, 828 F.2d at 83-84; Shearon Envtl., 1993 WL 476232 at *5)). As Restatement § 27 puts it:
Apparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.
"Of course, the acts that create the appearance of actual authority must be acts of the principal [Glueckert], not those of the agent [FDSA]" ( New York Flame Proofing, 828 F.2d at 84), so that FDSA "cannot confer apparent authority on itself; the authority of an agent can only be established by tracing it to its source in some word or act of the alleged principal" (id. (citations and internal quotation omitted)). Particularly applicable to this case is Restatement § 49 cmt. c:
Acts are interpreted in the light of ordinary human experience. If a principal puts an agent into, or knowingly permits him to occupy, a position in which according to the ordinary habits of persons in the locality, trade or profession, it is usual for such agent to have a particular kind of authority, anyone dealing with him is justified in inferring that he has such authority, in the absence of reason to know otherwise. The content of such apparent authority is a matter to be determined from the facts.
Accord, id. § 27 cmt. a; Illinois Conference of Teamsters & Employers Welfare Fund v. Mrowicki, 44 F.3d 451, 463 (7th Cir. 1994).
Application of the Legal Principles
Under the confluence of summary judgment principles and agency law, Moriarty can prevail on his motion only if, with Glueckert given the benefit of the reasonable favorable inferences mandated by Rule 56, the record shows that as a matter of law--i.e., that no reasonable factfinder could conclude otherwise--FDSA acted with actual or apparent authority to enter into agreements with Union on Glueckert's behalf. Conversely, Glueckert can win now only if, with Moriarty given that same Rule 56 generosity, the record shows that as a matter of law FDSA did not have actual or apparent authority. What follows are some of the principal facts that support each party's motion, from which it becomes apparent that this Court cannot decide as a matter of law whether or not FDSA had authority to act on Glueckert's behalf.
In the light most favorable to Moriarty:
1. FDSA bargains with Union on behalf of all of its employer-members, including Glueckert. It has always advised Union at the outset of negotiations for a new CBA that it is bargaining on behalf of all of its members, and its labor contracts with Union purport to bind all FDSA members that employ persons who perform covered work. In addition, a principal activity of FDSA is and always has been the negotiation of labor contracts with Union, and it is a universally observed custom that all FDSA employer-members are bound by those contracts (P. 12(M) P10; P. 12(N) Supp. PP61-64; Moriarty Dep. 120-21, 139).
2. As a member of FDSA for six years, Glueckert periodically (several times during the course of each year) received FDSA newsletters (P. Ex. X; P. 12(M) P12, 26) that made reference to, and provided updates on the status of, labor negotiations that the FDSA's negotiating teams were involved in on behalf of FDSA members (see P. R. Mem. 8-9 for relevant excerpts from those newsletters).
3. As a member of FDSA, Glueckert periodically received notice from FDSA that labor contracts were open for negotiation. And after the negotiation of new labor contracts, Glueckert was sent notice of the new terms of those contracts and copies of the contracts (D. 12(N) P12.2-.3; Moriarty Aff. PP14-16, 21-22). Some FDSA letters sent to its members, including Glueckert, that informed them of new CBAs stated that the agreements apply "to every member of the association" (P. Ex. Z; Moriarty Aff. P22).
4. Both John Jr. (and to a lesser extent John Sr.) participated in FDSA activities and periodically attended FDSA membership meetings, at which meetings the minutes of the most recent FDSA Board of Directors (the "Board") were read (P. Ex. AA 9-12). And John Jr. actually served on the Board, which is entrusted to manage FDSA, from March 1994 until September 1994, during which time the Board approved the embalmers negotiating committee's proposed labor contract (P. Ex. AA 10-11; see P. R. Mem. 5-6).
But viewed in the light most favorable to Glueckert:
1. Labor negotiations are not as large or conspicuous a part of FDSA as Moriarty suggests. In fact, when John Sr. was considering joining FDSA he was sent a letter from FDSA providing background and introductory information on the association (P. Ex. W; D. Ex. 4A). That letter outlines recent FDSA activities and areas of interest such as "Funeral Director Regulation," "Insurance Programs" and "Funeral Director and Consumer Education," but it does not so much as mention negotiation of labor contracts with Union (id.). FDSA also sent John Sr. a one-page brochure titled "WHAT FDSA CAN DO FOR YOU" (D. Ex. 4A). Despite listing several different services that FDSA has to offer to potential members (including "Information Central," "Educational Meetings and Workshops," "Government Relations," "Insurance Programs," "Programming Assistance," "Special Reports," "Legal," "Legislative," "Monthly Newsletter," "Quarterly Meetings," "Other Services," "Fun" and "Travel"), that promotional document makes no reference to labor relations or to the negotiation of labor contracts with Union (id.).
2. Before joining FDSA, John Jr. and Sr. met with FDSA Executive Director Moriarty to discuss Glueckert's joining FDSA. At that meeting, John Sr. asked Moriarty a question about FDSA and union membership (John Sr. Dep. 47). John Sr. says that he understood Moriarty's response to mean that joining FDSA would not create any relationship between Glueckert and any union (John Sr. Aff. P8).
3. Although Glueckert may have known that FDSA bargained on behalf of some of its members, it was not aware that FDSA bargained on behalf of all of its members and was not aware of any labor or union ramifications to joining FDSA, and it was never informed by anyone (until 1994) that by joining FDSA it would be obligated to make contributions to Funds (D. 12(M) 29-30, 37, 41, 47, 50-52; Glueckert Sr. Aff. P10; see D. R. Mem. 5, 7-9). Glueckert never signed a CBA or any document authorizing FDSA to negotiate such agreements on its behalf, and it has never voted upon, approved or ratified any union contract (D. 12(M) PP31-36). Glueckert has also provided the affidavit of one other FDSA member who was not aware that FDSA bargained on its behalf (Justen Aff.).
In terms of "the actions of the principal" that may create an agency relationship, the undisputed factual background shows that once having joined FDSA, Glueckert remained a member for several years, received FDSA correspondence, attended meetings and had its manager appointed to FDSA's Board--all the while being told on a regular basis (several times yearly) about FDSA's negotiation of CBAs with Union, about the details of wages and working conditions involved in those negotiations and about the results of those negotiations (including being sent copies of the CBAs themselves). To recapitulate the earlier summary of legal principles, such actions may well contribute to the finding of a grant of authority to FDSA, but they cannot alone be held to prove such a grant unless they were sufficient either (1) to manifest an intention to be bound that would support a reasonable belief on FDSA's part that it had authority to bind Glueckert (actual authority) or (2) to support a reasonable belief on Union's part that FDSA was authorized to bind Glueckert (apparent authority).
In terms of the pro-Glueckert factors, when buttressed with favorable inferences, Moriarty must fail at this stage in its contention (see P. Mem. 6-7, 10, 13; P. R. Mem. 7-8; P. 12(N) P31) that as a matter of law Glueckert's agreement to join FDSA amounted to an express delegation of authority to bind it to CBAs with Union. While it is true that in becoming an FDSA member Glueckert agreed to "be bound by [FDSA's] Constitution, By-Laws, Rules and Regulations" (P. Ex. N), the FDSA Constitution and By-Laws--both those in effect when Glueckert joined FDSA (P. Ex. S) and those now in effect (P. Ex. T)--not only lack specific authorization to FDSA to conduct collective bargaining on behalf of its membership, but they do not even mention the subject (just as the introductory letter and brochure also did not mention such activity).
Instead, FDSA's authorization to conduct labor negotiations on behalf of its membership is contained in FDSA's "Official Statements of Policy" ("Policy Statements")
--a document that, although available to any FDSA member, is not ordinarily given to or discussed with new members (Moriarty Dep. 112) and that was not given to Glueckert when it joined (P. 12(M) P28).
That, when coupled with John Sr.'s understanding of his initial conversation with Moriarty, is enough to allow Glueckert to escape summary judgment on the issue of whether it, by signing the FDSA application and membership card (with their agreement to be bound by FDSA's Constitution, By-Laws, Rules and Regulations), must be found as a matter of law to have conferred bargaining authority upon FDSA, rather than leaving it to the factfinder to resolve the fact-sensitive agency determination.
What has just been said should not be overstated, however. On the other side of the coin, a reasonable factfinder could well conclude--especially if Moriarty's explanation of John Sr.'s question and his own answer were accepted
--that Glueckert's essentially ostrich-like behavior was entirely unjustified.
So this Court must now deny both parties' motions because the question whether FDSA had authority--actual or apparent--to act as Glueckert's bargaining agent really hinges on the facts (see Anetsberger v. Metropolitan Life Ins. Co., 14 F.3d 1226, 1234 (7th Cir. 1994), quoting Illinois case law holding that "the existence and scope of an agency relationship are questions of fact, unless the parties' relationship is so clear as to be undisputed"). And on the present record it cannot be determined as a matter of law that FDSA either was (Moriarty's motion) or was not (Glueckert's motion) authorized to enter into CBAs on Glueckert's behalf--most prominently due to the need for a factual determination in terms of the conspicuousness and scope of FDSA's collective bargaining activities.
Although Glueckert has also raised laches and estoppel defenses, neither party has sufficiently addressed the applicability of those defenses to a fund's collection action against an employer
--certainly Glueckert's citations (D. R. Mem. 13-14) to cases such as Central States Fund v. Blue Ridge Trucking Co., No. 91 C 824, 1993 U.S. Dist. LEXIS 10998, 1993 WL 303128, at *1-*2 (N.D.Ill. Aug. 9) are unhelpful. But even if such defenses are assumed to be potentially applicable to such an action (see Iron Workers' Local No. 25 Pension Fund v. Klassic Services, Inc., 913 F. Supp. 541, 544-46 (E.D. Mich. 1996) and cases cited there; Central States Fund v. Heineman Distrib., Inc., No. 93 C 1246, 1994 U.S. Dist. LEXIS 12752, 1994 WL 496730, at *3 (N.D. Ill. Sept. 9)), Glueckert has not established its entitlement to either defense as a matter of law (see Hawxhurst v. Pettibone Corp., 40 F.3d 175, 181 n. 5 (7th Cir. 1994) ("Laches is an affirmative defense which is required to be proved by the party raising it")).
Two elements must be present to establish laches: (1) unreasonable delay in the assertion of a right and (2) resulting prejudice to the opposing party ( id. at 181; Zelazny v. Lyng, 853 F.2d 540, 541 (7th Cir. 1988)). As to the first factor, Glueckert points to the fact that Funds did not seek any contributions until five years after Glueckert joined FDSA, and as to the second component Glueckert says that it "spent tens of thousands of dollars on health, welfare and pension benefits for its employees" and "would not have done so if it had believed its employees were already covered by a fund or funds" (D. R. Mem. 14). But Glueckert has not established its entitlement to summary judgment as to either element:
1. As for the delay factor, Glueckert simply has not shown that Fund's actions were unreasonable as a matter of law--Glueckert's bare assertions that Funds displayed a "lack of diligence" notwithstanding.
2. As for any notion of prejudice, Funds dispute that component by contending that the amounts spent by Glueckert "were paid at rates much lower than the amounts required by the Funds" (P. R. Mem. 15).
Estoppel analysis does not add anything new or different to the mix, for in the context of this case laches is clearly the more appropriate and accurate way of characterizing any equitable defense to which Glueckert may arguably be entitled (see Martin v. Consultants & Adm'rs, Inc., 966 F.2d 1078, 1091 (7th Cir. 1992) ("laches is a species of estoppel")). After all, the only action on Funds' part that could form the basis of an estoppel defense consists of the same inaction that supports any potential defense of laches--Funds' failure to seek collection for several years.
And both the claimed prejudice identified by Glueckert and Funds' response to that claim equate to a dispute over the detrimental reliance factor of an estoppel defense. Thus it is difficult to imagine the facts of this case spinning out in such a way that Funds' actions would entitle Glueckert to an estoppel defense but not to a laches defense.
Because neither party has met its burden of establishing the lack of a genuine issue of material fact, neither is entitled to a judgment as a matter of law. Both Rule 56 motions for summary judgment are denied. This action is set for a status hearing at 9 a.m. June 13, 1996 to discuss (1) any further procedures required to ready the case for trial and (2) the setting of a trial date.
Milton I. Shadur
Senior United States District Judge
Date: May 23, 1996