Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 1 of 25

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED-INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO-CLC, and UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED-INDUSTRIAL AND SERVICE WORKERS LOCAL 4-786,

) ) ) ) ) ) ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) E.I. DUPONT DE NEMOURS AND ) COMPANY, ) ) Defendant. ) ___________________________________ )

C.A. No. 07-126 (JJF)

PLAINTIFFS' ANSWERING BRIEF IN OPPOSITION TO DEFENDANT'S MOTION TO STAY ALL PROCEEDINGS

JEREMIAH A. COLLINS JENNIFER L. HUNTER Bredhoff & Kaiser, P.L.L.C. 805 Fifteenth St., NW Washington, D.C. 20005 Telephone: (202) 842-2600 Facsimile: (202) 842-1888 [email protected] [email protected]

SUSAN E. KAUFMAN Heiman, Gouge & Kaufman, L.L.P. 800 King Street, Suite 303 P.O. Box 1674 Wilmington, DE 19801 Telephone: (302) 658-1800 Facsimile: (302) 658-1473 [email protected] Attorneys for Plaintiffs United Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL-CIO-CLC, and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers Local 4-786

Dated: May 24, 2007

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 2 of 25

TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii NATURE AND STAGE OF PROCEEDINGS ...............................................................................1 SUMMARY OF ARGUMENT .......................................................................................................2 I. STATEMENT OF FACTS ..................................................................................................3

ARGUMENT...................................................................................................................................6 I. THE "FIRST-FILED RULE" IS NOT APPLICABLE BECAUSE LOCAL 4-786 IS NOT A PARTY TO THE VIRGINIA SUIT...................................................................6 II. EVEN IF THE PARTIES TO THIS CASE AND THE VIRGINIA CASE WERE IDENTICAL, THIS ACTION SHOULD HAVE PRECEDENCE BECAUSE DUPONT'S VIRGINIA FILING IS AN IMPROPER ATTEMPT TO DENY LOCAL 4-786 ITS RIGHT TO CHOOSE THE FORUM IN WHICH TO LITIGATE ITS CLAIM AGAINST DUPONT, AND THE BALANCE OF CONVENIENCE FAVORS THIS FORUM.....................................................................................................9 CONCLUSION..............................................................................................................................19

i

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 3 of 25

TABLE OF AUTHORITIES Abovepeer, Inc. v. Recording Indus. Ass'n of Am., 166 F. Supp. 2d 655 (N.D.N.Y.), aff'd on other grounds, 21 Fed. Appx. 52 (2d Cir. 2001)...........................................................7 Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 10 F.3d 425 (7th Cir. 1993) ...............................10 Anheuser-Busch, Inc. v. Supreme Int'l Corp., 167 F.3d 417 (8th Cir. 1999) ................................10 Arrow Communication Labs. Inc. v. John Mezzalingua Assocs., Inc., No. Civ. 05-357, 2005 WL 2786691 (D. Del. Oct. 26, 2005) .................................................18 Burstein v. Applied Extrusion Techs., Inc., 829 F. Supp. 106 (D. Del. 1992) ..............................18 Cas. Indem. Exch. v. High Croft Enters., 714 F. Supp. 1190 (S.D. Fla. 1989) .............................10 Chase Manhattan Bank v. Freedom Card, Inc., 265 F. Supp. 2d 445 (D. Del. 2003) .....................6 CitiGroup Inc. v. City Holding Co., 97 F. Supp. 2d 549 (S.D.N.Y. 2000)....................................17 Crown Cork & Seal Co. v. United Steelworkers of America, No. 03-1381, 2004 U.S. Dist. LEXIS 760 (W.D. Pa. Jan. 9, 2004)...............................................................13 Dippold-Harmon Enterprises, Inc. v. Lowe's Cos., No. 01-532-GMS, 2001 WL 1414868 (D. Del. Nov. 13, 2001) ..........................................................................7, 8 Drugstore-Direct, Inc. v. Cartier Div. of Richemont N. Am., Inc., 350 F. Supp. 2d 620 (E.D. Pa. 2004) ...........................................................................12, 13, 17 EEOC v. Univ. of Pa., 850 F.2d 969 (3d Cir. 1988), aff'd on other grounds, 493 US 182 (1990) .............................................................6, 10, 11, 12 E.I. DuPont de Nemours & Co. v. United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied-Industrial & Serv. Workers Int'l Union, No. 3:07-cv-0103-HEH (E.D. Va. filed Feb. 28, 2007).............................................................4 FMC Corp. v. AMVAC Chem. Corp., 379 F. Supp. 2d 733 (E.D. Pa. 2005) ...............................10 Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215 (2d Cir. 1978), overruled on other grounds, Pirone v. MacMillan, Inc., 894 F.2d 579 (2d Cir. 1990) ..........................................10 First City Nat'l Bank & Trust Co. v. Simmons, 878 F.2d 76 (2d Cir. 1989).................................17 First Nationwide Mortgage Corp. v. FISI Madison, LLC, 219 F. Supp. 2d 669 (D. Md. 2002) .........................................................................................11

ii

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 4 of 25

Hunt Mfg. Co. v. Fiskars Oy AB, No. Civ. A. 97-2460, 1997 WL 667117 (E.D. Pa. Oct. 2, 1997)..........................................................................12, 17 Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995) ...........................................................18 NGS Am., Inc. v. Jefferson, 218 F.3d 519 (6th Cir. 2000)......................................................10, 14 Nutrition & Fitness, Inc. v. Blue Stuff, Inc., 264 F. Supp. 2d 357 (W.D.N.C. 2003) ...................11 One World Botanicals Ltd. v. Gulf Coat Nutritionals, Inc., 987 F. Supp. 317 (D.N.J. 1997) .......................................................................10, 12, 13, 14, 15 Osteotech, Inc. v. Gensci Regeneration Sciences, Inc., 6 F. Supp. 2d 349 (D.N.J. 1998) ..........6, 7 Regions Bank v. Wieder & Mastroianni, P.C., 170 F. Supp. 2d 436 (S.D.N.Y. 2001)...................7 Rexam, Inc. v. United Steelworkers of America, No. 03-2998, 2003 WL 22477858 (D. Minn. Oct. 30, 2003) ..................................................................16, 17 Richards v. Jefferson County, Ala., 517 U.S. 793 (1996) ...............................................................8 Touchstone Research Lab., Ltd. v. Anchor Equip. Sales, Inc., 294 F. Supp. 2d 823 (N.D.W. Va. 2003) .................................................................................11 UAW v. Dana Corp., No. 99-7603, 1999 U.S. Dist. LEXIS 22525 (N.D. Ohio Dec. 6, 1999)..................................................10, 14 UAW v. Dana Corp., No. 99-7603, 2000 U.S. Dist. LEXIS 12041 (N.D. Ohio Mar. 22, 2000) .....................................................14 Ven-Fuel, Inc. v. Dep't of the Treasury, 673 F.2d 1194 (11th Cir. 1982) .....................................10 MISCELLANEOUS 12 Moore's Federal Practice § 57.42[3] (3d ed. 2006)...................................................................10

iii

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 5 of 25

NATURE AND STAGE OF PROCEEDINGS This case concerns the arbitrability of a grievance filed by Plaintiff United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers Local 4786 ("Local 4-786") under the collective bargaining agreement ("CBA") in effect between Local 4-786, and the International Union with which it is affiliated ­ Plaintiff United Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL-CIO-CLC ("the USW") ­ and E.I. DuPont de Nemours and Company ("DuPont" or the "Company") at DuPont's plant located in Edgemoor, Delaware. Local 4-786 filed a grievance in September 2006 alleging that unilateral changes DuPont had announced to the benefits provided through its pension and welfare plans violated the parties' CBA. See Exhs. C & D to Complaint. DuPont refused to submit the grievance to arbitration, despite the existence of a broad arbitration clause in the CBA. See Exhs. A at 9, F to Complaint. Local 4-786, through counsel for the USW, informed DuPont that legal action would be taken to compel arbitration if DuPont did not, within ten days, agree to arbitrate Local 4-786's grievance. See Exh. G to Complaint. Just ten days after the period set forth in that demand letter expired, DuPont brought a declaratory judgment action in the Eastern District of Virginia against the USW seeking a declaration as to the arbitrability of the grievance filed by Local 4-786, as well as grievances filed by USW-affiliated Local Unions in New Jersey and New York. The very next day, Local 4-786 and the USW filed this action to compel arbitration in this Court. DuPont now asks this Court to stay this action in favor of the anticipatory declaratory judgment action it filed in the Eastern District of Virginia, hundreds of miles away from the Edgemoor plant ­ an action to which Local 4-786 is not even a party. This is the Plaintiffs' Opposition to DuPont's Motion to Stay All Proceedings.

1

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 6 of 25

SUMMARY OF ARGUMENT I. DuPont invokes the "first-filed" rule, but that rule is inapplicable here because Local 4786 is not a party to DuPont's Virginia suit. II. In any case, even if Local 4-786 were a party to the Virginia action, a stay would not be appropriate, because DuPont's Virginia action is an improper "preemptive strike" brought to deprive Local 4-786 and the USW, the natural plaintiffs, of their ability to frame the issues and choose the forum for their claims; and because the balance of convenience favors this forum.

2

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 7 of 25

I.

STATEMENT OF FACTS

DuPont's employees in Edgemoor, Delaware, are covered by a CBA between DuPont, Local 4-786, and the USW. On September 14, 2006, Local 4-786 filed a grievance alleging that unilateral changes in various benefit programs that were announced by DuPont in August 2006 were in violation of provisions in the CBA prohibiting such modifications.1 The grievance alleges violations only of the CBA, not of ERISA or of the DuPont benefit plans themselves.2 Also in August-September of 2006, USW-affiliated Local Unions in New Jersey and New York filed their own grievances against DuPont, alleging that DuPont's benefit cuts violated their own CBAs with DuPont. In early September 2006, a USW representative wrote to DuPont expressing concern that DuPont's unilateral benefit cuts violated the various USW-affiliated Local Unions' CBAs, and proposing the scheduling of a "joint meeting, including the International Union and all affected Local Unions" to discuss the matter. See Declaration of James Briggs ("Briggs Decl.") (Exh. A to this Opposition) ¶ 8 and Exh. 1 thereto. Taking a position in marked contrast to its current allegation that it is engaged in a "nation-wide" dispute with labor unions over its benefit changes, see Defendant's Opening Brief in Support of its Motion to Stay All Proceedings ("DuPont Stay Brief") at 7, DuPont rejected the USW's proposal on the ground that the disputes were "local" ones:
1

Contrary to DuPont's claim, see Defendant's Opening Brief in Support of its Motion to Stay All Proceedings at 4, the USW did not file any grievances against DuPont; Local 4-786's grievance, and those filed by other USW Local Unions, were brought by the Local Unions alone. See Exh. C to Complaint; Declaration of James Briggs (Exh. A to this Opposition) ¶ 5. DuPont's statement that the USW Local Unions' grievances "raise similar ERISA benefits eligibility issues" is incorrect, and appears to be an attempt to draw the Court's attention away from the fact that each Local Union's grievance actually alleges solely a violation of that Local Union's CBA, not a violation of ERISA or of any ERISA plan. Compare Defendant's Opening Brief in Support of its Motion to Stay All Proceedings at 4 with Exh. D to Complaint.
2

3

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 8 of 25

Our philosophy remains that union-management issues are local. Therefore, we believe they are best dealt with by knowledgeable union and management people at the local level.

Briggs Decl. ¶ 9 and Exh. 2 thereto (emphasis added). In a letter sent to the President of Local 4-786 on January 25, 2007, DuPont refused to arbitrate Local 4-786's grievance. See Exh. F to Complaint. DuPont also refused to arbitrate the separate grievances filed by the USW-affiliated Local Unions in New York and New Jersey. On February 8, 2007, Richard Brean, the International Union's Senior Associate General Counsel, to whom DuPont's letters to the Local Union presidents had been referred for reply, informed DuPont that legal action would be initiated to compel arbitration of Local 4-786's grievance unless DuPont provided written notice within ten days that it would resume processing the grievance under the CBA. See Exh G to Complaint. Mr. Brean's letter also stated that the Unions would "seek to recover their attorney's fees if DuPont files a declaratory judgment in an unlawful effort to thwart the exercise of our federally protected right to process and arbitrate grievances." Id. After receiving notice that suits against it were imminent, and notwithstanding its previously-stated position that disputes over the respective Local Union grievances were "local" matters, on February 28 DuPont filed a declaratory judgment action against the USW in the Eastern District of Virginia, seeking to block arbitration of the grievances filed by Local 4-786 and by the New Jersey and New York Local Unions. See E.I. DuPont de Nemours & Co. v. United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied-Industrial & Serv. Workers Int'l Union, No. 3:07-cv-0103-HEH (E.D. Va. filed Feb. 28, 2007) (the "Virginia action"). DuPont's Virginia action was filed only twenty days after DuPont had received notice that suits against it

4

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 9 of 25

were imminent, and only ten days after the response period set forth in Mr. Brean's letters had expired. DuPont's Virginia action does not name Local 4-786 or the other two Local Unions as parties. Rather, only the USW has been sued; and DuPont has not disputed the fact that the Virginia court lacks personal jurisdiction over Local 4-786 and the New York and New Jersey Local Unions. DuPont alleges that it chose Virginia as the forum for its action because DuPont previously had brought suit there against the Ampthill Rayon Workers Union ("ARWI") ­ an entirely separate and independent union which is not affiliated with the USW or Local 4-786, and which, unlike the USW or Local 4-786, does represent DuPont workers in Virginia. The day after DuPont's Virginia action was filed, on March 1, 2007, Local 4-786 and the USW filed the instant suit to compel arbitration of Local 4-786's grievance.3 The USW Local Unions in New York and New Jersey also filed suits to compel arbitration within hours or days after DuPont filed the Virginia action. These suits were filed in the Western District of New York and the District of New Jersey, respectively. The USW has moved to dismiss DuPont's Virginia action on several grounds including, inter alia, that DuPont's suit is an improper anticipatory declaratory judgment action and that the Local Unions are indispensable parties who cannot be joined in Virginia. See Defendant's Brief in Support of Motion to Dismiss and Defendant's Reply in Support of Motion to Dismiss (Exhs. B and C attached to this Opposition). Argument on the USW's motion to dismiss, and on a

DuPont states that "[m]ore than 5 weeks before this action was filed, DuPont filed suit to resolve a nation-wide dispute between DuPont and labor unions representing DuPont employees at DuPont facilities in five states." DuPont Stay Brief at 7. However, the action DuPont filed five weeks before this action was filed did not involve the USW-affiliated Local Unions or the USW at all ­ rather, it is a separate declaratory judgment action filed only against ARWI.

3

5

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 10 of 25

motion by DuPont to consolidate its Virginia action against the USW with the ARWI action, is scheduled for June 7. If the USW's motion to dismiss the Virginia suit is granted, DuPont's Motion to Stay All Proceedings in this case will be moot. But even if the motion to dismiss is not granted, DuPont's Motion to Stay should be denied, as we now show.

ARGUMENT I. THE "FIRST-FILED RULE" IS NOT APPLICABLE BECAUSE LOCAL 4-786 IS NOT A PARTY TO THE VIRGINIA SUIT The "first-filed rule" upon which DuPont's Motion to Stay is premised simply does not apply here as to Local 4-786, because Local 4-786, a plaintiff in this case and a real party in interest to its dispute with DuPont, is not a party to DuPont's Virginia actions against the USW or ARWI and will not be bound by the outcome of those cases. The first-filed rule--the principle that, when parallel suits are pending in different districts, the suit that was filed first should be given priority--comes into play when two suits involve the same issues and the same parties. See EEOC v. Univ. of Pa., 850 F.2d 969, 971 (3d Cir. 1988), aff'd on other grounds, 493 U.S. 182 (1990); Chase Manhattan Bank v. Freedom Card, Inc., 265 F. Supp. 2d 445, 448 (D. Del. 2003). The case of Osteotech, Inc. v. Gensci Regeneration Sciences, Inc., 6 F. Supp. 2d 349 (D.N.J. 1998), is instructive in this regard. Osteotech brought suit in New Jersey against GenSci Labs and its parent company, GenSci Canada, alleging that the defendants were infringing a patent held by Osteotech. Shortly thereafter, GenSci Labs brought suit in California seeking a declaration that it was not infringing on the patent. Osteotech moved the New Jersey court to enjoin the California action on the basis of the "first-filed" rule. The New Jersey court held that,

6

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 11 of 25

assuming that the New Jersey action was first-filed as compared to the California case, the "firstfiled" rule did not apply where GenSci Canada, a party to the New Jersey case, was not a party to the California case. Id. at 357. Likewise here, Local 4-786, a plaintiff in this case, is not a party to the Virginia action, so the first-filed rule simply does not apply. The cases DuPont cites in support of its assertion that the first-filed rule can apply even though Local 4-786 is absent from the Virginia litigation, see DuPont Stay Brief at 13-14, are inapposite. In Regions Bank v. Wieder & Mastroianni, P.C., 170 F. Supp. 2d 436 (S.D.N.Y. 2001), the court stayed a second-filed suit against a party not present in the first-filed suit, where the dispute was essentially between the parties to the first suit and might be completely resolved in the first-filed suit without the presence of the other party, which was only a middleman to the transaction in question and no longer had possession of the relevant funds. In the other case cited by DuPont, Dippold-Harmon Enterprises, Inc. v. Lowe's Cos., No. 01-532-GMS, 2001 WL 1414868 (D. Del. Nov. 13, 2001) (Exh. D to this Opposition), the court found that the first-filed rule applied even though the first-filed case involved Lowe's Home Centers ("Home Centers") and the second-filed case involved Lowe's Companies, Inc. ("Lowe's"), where Home Centers was a "wholly-owned subsidiary corporation" of Lowe's, Lowe's maintained "significant control" over Home Centers, Lowe's executives "supervise[d]" and "overs[aw]" the Home Centers retail stores and traveled to the stores on an almost daily basis, and Lowe's made no distinction between its Lowes stores and its Home Center stores in its advertisements or its internal communications. Id. at *1-3. Thus, Home Centers and Lowe's could be considered "one and the same party" for purposes of the "first-filed" rule. Id. at *5. See also Abovepeer, Inc. v. Recording Indus. Ass'n of Am., 166 F. Supp. 2d 655, 662 (N.D.N.Y.) (noting that cases in which first-filed rule was held to apply even though the parties were non-identical did not

7

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 12 of 25

involve "a second-filed action brought by separate, independent plaintiffs with distinct rights"), aff'd on other grounds, 21 Fed. Appx. 52 (2d Cir. 2001). By contrast, Local 4-786 is neither a middleman to a transaction between DuPont and the USW, nor a wholly-owned and controlled subsidiary of the USW. Rather, Local 4-786 is an independent entity which makes its own decisions about its own affairs, including its own grievances. As noted, the grievance as to which Local 4-786 seeks to compel arbitration was filed by the Local Union, not by the USW. Furthermore, the authority to make decisions about the grievance, including not only whether to file a grievance in the first instance, but also what positions to assert in the grievance, whether and how to demand arbitration, and whether to settle, lies entirely with Local 4-786, not with the USW. See Briggs Decl. ¶¶ 4-6. Thus, with respect to Local 4-786's grievance, Local 4-786 and the USW cannot be considered "one and the same party," Dippold-Harmon Enterprises, 2001 WL 1414868, at *5. To be sure, the USW does provide support and assistance to its Local Unions, including Local 4786, but this does not mean that the USW has the same legal rights in this dispute as has Local 4786 ­ any more than an attorney can be considered "one and the same party" as his client, merely because the attorney provides representation and assistance to the client and seeks to advance the client's interests. See Richards v. Jefferson County, Ala., 517 U.S. 793, 796 (1996) (nonparties could not be bound by judgment even though their interests were "essentially identical" to those of parties to case). Having declared that the USW should not even be permitted to participate in a meeting with DuPont to discuss the Local Unions' grievances because each grievance should be resolved by the "union . . . people at the local level," see supra at 4,4 DuPont cannot possibly

4

It should be noted that the letter from a USW representative to which DuPont was responding did not suggest that the USW had any authority over the various Local Union's grievances. The 8

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 13 of 25

maintain that the Local Unions' rights to arbitrate those grievances can properly be determined in litigation where only the USW, and not the Local Unions, is a party. Indeed, because Local 4-786 is not a party to the Virginia action, it cannot be bound by a judgment in that action. Consequently, staying this case could not further the cause of judicial efficiency; it would only delay the day in court to which Local 4-786 unquestionably is entitled. For these reasons, the first-filed rule is not applicable here, and DuPont has no grounds for a stay.

II.

EVEN IF THE PARTIES TO THIS CASE AND THE VIRGINIA CASE WERE IDENTICAL, THIS ACTION SHOULD HAVE PRECEDENCE BECAUSE DUPONT'S VIRGINIA FILING IS AN IMPROPER ATTEMPT TO DENY LOCAL 4-786 ITS RIGHT TO CHOOSE THE FORUM IN WHICH TO LITIGATE ITS CLAIM AGAINST DUPONT, AND THE BALANCE OF CONVENIENCE FAVORS THIS FORUM Even if Local 4-786 were a party to the Virginia suit, a stay in this case would be

unwarranted for two reasons. First, by its Virginia suit DuPont has engaged in a tactical maneuver that is regularly condemned by the courts: having been made aware that a suit alleging violations of law was about to be filed against it, the prospective defendant rushed to file a "preemptive" or "anticipatory" declaratory judgment action in the hope of depriving the natural plaintiff of the ability to frame the issues and to choose the forum for its claim. Second, the balance of convenience favors a Delaware forum over a Virginia forum hundreds of miles away from Local 4-786, its members, and the Edgemoor plant. A. The "first-to-file rule is not a mandate directing wooden application of the rule without regard to rare or extraordinary circumstances, inequitable conduct, bad faith, anticipatory

requested meeting ­ unlike DuPont's Virginia litigation ­ would have included representatives of "all affected Local Unions." Briggs Decl. Exh. 1.

9

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 14 of 25

filing or forum shopping." FMC Corp. v. AMVAC Chem. Corp., 379 F. Supp. 2d 733, 738 (E.D. Pa. 2005) (citing EEOC v. Univ. of Pa., 850 F.2d 969, 972 (3d Cir. 1988), aff'd on other grounds, 493 U.S. 182 (1990)) (internal quotations and brackets omitted). In particular, the Third Circuit has made it clear that "anticipatory litigation," such as an action for declaratory judgment that is brought in an attempt to preempt an anticipated suit, "is disfavored." One World Botanicals Ltd. v. Gulf Coat Nutritionals, Inc., 987 F. Supp. 317, 329 (D.N.J. 1997) (citing EEOC, 850 F.2d at 977). To decline jurisdiction over such a preemptive declaratory judgment action is not only "[]favored," id.; it is the presumptively proper course. As the Seventh Circuit has put it, "a suit for declaratory judgment aimed solely at wresting the choice of forum from the `natural' plaintiff will normally be dismissed." Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 10 F.3d 425, 431 (7th Cir. 1993). See also UAW v. Dana Corp., No. 99-7603, 1999 U.S. Dist. LEXIS 22525, at *18 (N.D. Ohio Dec. 6, 1999) (there is "a presumption that a first filed declaratory judgment action should be dismissed or stayed in favor of the substantive suit") (Exh. E to this Opposition); Cas. Indem. Exch. v. High Croft Enters., 714 F. Supp. 1190, 1193 (S.D. Fla. 1989) ("The declaratory remedy is not a tactical device whereby a party who would be a defendant in a coercive action may choose to be a plaintiff if he can beat the other party to the courthouse."); 12 Moore's Federal Practice § 57.42[3] (3d ed. 2006) (where a declaratory judgment action "was brought in anticipation of the coercive suit for the purpose of gaining the home court advantage, the coercive suit is usually given precedence").5 Accord, e.g., NGS Am., Inc. v. Jefferson, 218 F.3d 519 (6th Cir. 2000); Anheuser-Busch, Inc. v. Supreme Int'l Corp., 167 F.3d 417 (8th Cir. 1999); Ven-Fuel, Inc. v. Dep't of the Treasury, 673 F.2d 1194 (11th Cir. 1982); Factors Etc., Inc.
5

The treatise notes that this is particularly true "[w]hen the case has limited connection to the declaratory relief forum." Id.

10

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 15 of 25

v. Pro Arts, Inc., 579 F.2d 215, 219 (2d Cir. 1978), overruled on other grounds, Pirone v. MacMillan, Inc., 894 F.2d 579 (2d Cir. 1990); Touchstone Research Lab., Ltd. v. Anchor Equip. Sales, Inc., 294 F. Supp. 2d 823 (N.D.W. Va. 2003); Nutrition & Fitness, Inc. v. Blue Stuff, Inc., 264 F. Supp. 2d 357 (W.D.N.C. 2003); First Nationwide Mortgage Corp. v. FISI Madison, LLC, 219 F. Supp. 2d 669, 673 (D. Md. 2002). The Third Circuit's decision in EEOC v. University of Pennsylvania is instructive on this point. In that case, the EEOC was investigating charges of discrimination filed against the University of Pennsylvania by a faculty member who had been denied tenure. During the investigation, the University refused to release certain peer review materials relating to the faculty member's tenure review process. The EEOC subpoenaed the peer review materials. When the University again refused to produce the requested materials, the EEOC notified the University that it would institute subpoena enforcement proceedings if the University did not respond to the subpoena within 20 days. Three days before the end of that 20-day grace period, the University filed a suit for declaratory judgment against the EEOC in the United States District Court for the District of Columbia, claiming that the EEOC had violated the First and Fifth Amendments to the Constitution and the Administrative Procedures Act, by "adopting a policy that, in practice, constituted a nationwide rule requiring complete disclosure of confidential peer review materials." 850 F.2d at 973. The University stated that it had filed suit in the District of Columbia rather than in Pennsylvania because "more was at stake than the single question of the [EEOC's] possible enforcement of the its [sic] subpoena against the University." Id. Approximately six weeks later, the EEOC instituted subpoena-enforcement proceedings against the University in the Eastern District of Pennsylvania. The University moved to dismiss

11

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 16 of 25

the EEOC's Pennsylvania action on the basis of the first-filed rule, but the district court denied the University's motion, and the Third Circuit affirmed. Characterizing the University's decision to file suit in response to the EEOC's notice letter as an attempt to "preempt an inevitable subpoena enforcement action," id. at 974, the Third Circuit refused to accept the University's contention that it should be free to select the forum because it was addressing a "nationwide dispute": Although the University characterizes its District of Columbia filing as a broad first amendment challenge to the EEOC's national policy, its complaint . . . features a direct challenge to the EEOC subpoena: (1) issued in Philadelphia; (2) for records held by the University; and (3) relating to a discrimination charge arising at the University. The University's conduct following the issuance of the EEOC's subpoena, therefore, created a lamentable spectacle which was tantamount to the blowing of a starter's whistle in a foot race. Id. at 978 (internal quotations omitted). Other courts in the Third Circuit have followed the reasoning of EEOC. See, e.g., Drugstore-Direct, Inc. v. Cartier Div. of Richemont N. Am., Inc., 350 F. Supp. 2d 620 (E.D. Pa. 2004) (dismissing first-filed declaratory judgment suit triggered by notice letter); One World Botanicals Ltd. v. Gulf Coast Nutritionals, 987 F. Supp. 317 (D.N.J. 1997) (declining to transfer second-filed suit to court in which first-filed suit was filed because first-filed suit was anticipatory); Hunt Mfg. Co. v. Fiskars Oy AB, No. Civ. A. 97-2460, 1997 WL 667117 (E.D. Pa. Oct. 2, 1997) (dismissing first-filed declaratory judgment suit which was anticipatory and brought for purposes of forum-shopping) (Exh. F to this Opposition). As the University did in EEOC, here DuPont has brought an anticipatory declaratory judgment action in a forum unconnected to the parties or the facts at issue, and has attempted to justify that action by characterizing the dispute as "nation-wide." See DuPont Stay Brief at 7. However, as was the case in EEOC, here an examination of DuPont's complaint in the Virginia

12

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 17 of 25

action reveals that the relief it seeks as to Local 4-786 and the USW relates to the arbitrability of a grievance filed by Local 4-786 in Delaware under a CBA which governs employees at DuPont's Edgemoor, Delaware plant. See Complaint in DuPont v. USW, Exh. 1 to Brief in Support of DuPont Motion to Stay, ¶¶ 66, 69, 72 (seeking declarations and injunctions as to the three grievances filed by three separate USW-affiliated Local Unions, including Local 4-786).6 Furthermore, DuPont has selected a forum in which none of the affected Local Unions or the USW represents any DuPont employees. Perhaps the closest analogues to this case are Crown Cork & Seal Co. v. United Steelworkers of America, No. 03-1381, 2004 U.S. Dist. LEXIS 760 (W.D. Pa. Jan. 9, 2004) (Exh. G to this Opposition), and UAW v. Dana Corp., supra, both of which involved attempts by an employer to use a declaratory judgment action to pretermit anticipated suits by aggrieved employees or their union. Crown Cork & Seal, like this case, involved an employer's effort to obtain judicial approval of its decision to reduce employee benefits. The court held that "the proper plaintiffs in an action to determine whether the retirees' retirement benefits can be unilaterally changed . . . are the retirees and their Union. Further, that as the proper plaintiffs, the retirees and their Union should be permitted to select the forum of their choice so long as the selected forum has some nexus to the lawsuit." 2004 U.S. Dist. LEXIS 760 at *9. The court therefore dismissed the employer's declaratory judgment action. Id. at **9-11. In Dana Corp., as here, an employer brought an action seeking a declaration that a union was not entitled to enforce rights it was claiming under the arbitration provisions of a collective

Another factor "further confirm[ing] the anticipatory nature" of DuPont's Virginia action is "[t]he short amount of time . . . between the first and second filing." Drugstore-Direct, Inc., 350 F. Supp. 2d at 623 (finding time period of four days indicated first filing was anticipatory); see also One World Botanicals Ltd., 987 F. Supp. at 329-30 (fact that second-filed suit was filed seven days after declaratory suit was filed was evidence of bad faith).

6

13

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 18 of 25

bargaining agreement. Reasoning that the union was the "true plaintiff" in the controversy, 1999 U.S. Dist. LEXIS at **12-13, the court declined to permit the employer "to preempt the choice of forum that otherwise would be for the union to make," id. at *15. The court required the employer to show cause why "further maintenance of [its] suit . . . should not be enjoined," id. at *17, and in a subsequent decision, the court enjoined the employer's suit, "remain[ing] firmly of the view that the union is the true plaintiff, and, as such, is entitled to choose its forum, and not to have that choice made for it by its adversary." UAW v. Dana Corp., No. 99-7603, 2000 U.S. Dist. LEXIS 12041, at *5 (N.D. Ohio Mar. 22, 2000). The same result is called for in this case. It is plain that Local 4-786 and the USW are the natural plaintiffs in this dispute, as were the unions in Crown Cork & Seal and Dana Corp., and that DuPont raced to the Virginia court in order to deprive Local 4-786 and the USW, and the other USW Local Unions, of their right to select the forum(s) for litigation of their claims. Indeed, DuPont does not deny that it filed its Virginia suit in anticipation that the unions were about to file coercive actions to compel arbitration of their grievances. See DuPont Stay Brief at 5. That is not to be permitted, whatever DuPont's reasons may be for preferring Virginia as its forum. See NGS Am., supra, 218 F.3d at 523 (dismissing anticipatory declaratory judgment action "[w]ithout pretending to divine the motives of [the declaratory judgment plaintiff] in bringing this action where it did"); One World Botanicals Ltd., 987 F. Supp. at 329 (finding declaratory judgment suit was motivated by forum-shopping because "[w]hile there is no evidence that the outcome in Florida district court would be more `favorable' to [the declaratory judgment plaintiff] in the sense that circuit precedent differed, [the declaratory judgment plaintiff's] brief reveals that it perceived Florida to be a more favorable locale . . . because venue in Florida is more convenient for defendant, a domiciliary of that state.")

14

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 19 of 25

DuPont argues that its attempt to force all litigation over its benefit cuts into the Eastern District of Virginia should not be characterized as forum shopping, because ARWI is located in the Eastern District of Virginia and DuPont, having sued ARWI there, wished to "have the underlying dispute resolved in one forum." DuPont Stay Brief at 10. But, whether DuPont chose the Virginia forum because it regarded that jurisdiction as offering more favorable precedent, or simply for "convenien[ce]," One World Botanicals, 987 F. Supp. at 329, there can be no gainsaying that DuPont has engaged in forum shopping for the express purpose of preventing the Local Unions from being able to litigate their claims against DuPont in the forums of their choice. Indeed, DuPont asserts that its actions have been motivated by a desire not to "waste [its] resources" by allowing litigation to proceed in the forums the Local Unions ­ who are the natural plaintiffs ­ have selected. DuPont Stay Motion at 10. That is precisely the kind of forum shopping that the courts have recognized as justifying a refusal to apply the "first-filed" rule. One World Botanicals, 987 F. Supp. at 329. Although DuPont suggests that it also is seeking to preserve the Local Unions' resources, id., that suggestion is Kafkaesque. Local 4-786 has no desire to conserve its resources by having the fate of its grievance determined in litigation in Virginia to which it is not even a party. Any "resource conservation" that might be achieved by allowing DuPont's forum-shopping gambit to succeed would benefit only DuPont, to the detriment of Local 4-786.7 Furthermore, although DuPont purports to be vindicating an interest in "uniform[ity]," DuPont Stay Brief at 11, DuPont overlooks the fact that the respective CBAs and grievances simply are not uniform. DuPont itself has declared that the issues raised by the grievances Also Kafkaesque is DuPont's assertion that Local 4-786 and the other USW Local Unions were "forum shopping" when they filed suits in the districts in which they and their members are located, in order to compel arbitration of the grievances they filed in those districts, under CBAs they entered into in those districts. See DuPont Stay Brief at 10.
7

15

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 20 of 25

concerning the benefit reductions "are local." See supra at 5. What is more, in its complaint in the Virginia action against the USW and in its brief in that case, DuPont pointed to facts unique to individual Local Unions (specifically, DuPont emphasized that one Local Union's CBA mentions certain benefit programs while another Local Union's CBA mentions different programs), and DuPont asserted that those differences affect the arbitrability of the respective grievances. See Complaint in DuPont v. USW, Exh. 1 to Brief in Support of DuPont Motion to Stay, ¶¶ 61, 62; Plaintiff's Opposition to Defendant's Motion to Dismiss in DuPont v. USW, at 22 (Exh. H to this Opposition). DuPont thus recognizes "uniformity" as an interest to be pursued only where it suits DuPont's own purposes. Had DuPont in fact been confronted with a situation in which it would be necessary and proper that all litigation concerning the benefits reductions should be conducted in the Eastern District of Virginia, DuPont would not have needed to file a preemptive strike against the USW in order to attempt to force that result; DuPont could simply have moved to transfer all litigation concerning the benefit reductions to the Virginia court. Apparently recognizing that it would lack a basis for seeking such a transfer, DuPont has taken matters into its own hands by attempting to force all litigation into the Eastern District of Virginia through the filing of a complaint that seeks to determine the arbitrability and the merits of the New York, New Jersey and Delaware grievances even though Local 4-786 and the other Local Unions that filed those grievances do not conduct any business in Virginia and have filed litigation to enforce their rights in the districts where they do conduct business.8

8

DuPont's reliance on Rexam, Inc. v. United Steelworkers of America, No. 03-2998, 2003 WL 22477858 (D. Minn. Oct. 30, 2003), see DuPont Stay Brief at 11 and Exh. 7 thereto, is misplaced. In that case, the court found that the affected USW retirees whose benefits were at issue had as much of a connection to the forum in which the company had filed its declaratory judgment action (where one of the USW-represented facilities was located) as to any other 16

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 21 of 25

For these reasons, this is a clear case in which to apply the principle that a natural defendant will not be permitted to wrest the choice of forum from the natural plaintiff by filing a "preemptive strike" declaratory judgment action. B. This suit should not be stayed in favor of the Virginia suit for the additional reason that the balance of convenience clearly favors a Delaware forum over a Virginia forum. Even where the "first-filed" rule otherwise is applicable, a balance of convenience in favor of the second-filed suit is a reason to depart from the rule. Drugstore-Direct, Inc., 350 F. Supp. 2d at 623 (citing Hunt Mfg. Co., 1997 WL 667117 at *3); CitiGroup Inc. v. City Holding Co., 97 F. Supp. 2d 549, 555 (S.D.N.Y. 2000) (citing First City Nat'l Bank & Trust Co. v. Simmons, 878 F.2d 76, 79 (2d Cir. 1989)). The Third Circuit has enumerated several interests that should be considered in determining the balance of convenience: The private interests [] include[]: plaintiff's forum preference as manifested in the original choice; the defendant's preference; whether the claim arose elsewhere; the convenience of the parties as indicated by their relative physical and financial condition; the convenience of the witnesses--but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and the location of books and records (similarly limited to the extent that the files could not be produced in the alternative forum). The public interests [] include[]: the enforceability of the judgment; practical considerations that could make forum. See 2003 WL 22477858 at *3. Nor was there any contention in Rexam that the company's choice of forum had operated to exclude from the litigation local unions whose rights were at issue and whose CBAs and grievances varied from each other. Finally, and perhaps most important, in Rexam the company did not file a declaratory judgment action until six months had elapsed from its last communication with the USW, and the court concluded in those circumstances that the company had not been aware that the union was about to file suit. See id. at *5. Here, in contrast, the unions gave DuPont unequivocal notice of their intention to file suit, and DuPont then promptly raced into court. DuPont also argues that its role as an ERISA fiduciary justifies its pursuit of a uniform resolution of the various grievances. See DuPont Stay Brief at 10-12. However, DuPont does not have standing to pursue its purported ERISA claims, for the reasons stated in Defendant's Brief in Support of Motion to Dismiss at 13-16 and Defendant's Reply in Support of Motion to Dismiss at 14-16 (Exhs. B and C attached to this Opposition). This suit is not about ERISA or fiduciary duties; it is about resolving through arbitration a grievance alleging a breach of a CBA.

17

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 22 of 25

the trial easy, expeditious, or inexpensive; the relative administrative difficulty in the two fora resulting from court congestion; the local interest in deciding local controversies at home; the public policies of the fora; and the familiarity of the trial judge with the applicable state law in diversity cases. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879-80 (3d Cir. 1995) (internal quotations and citations omitted). Here, the forum choice of the plaintiffs, the location where the claim arose, the convenience of parties, the convenience of witnesses, the location of relevant documents, and the local interest in deciding local controversies at home all point in favor of a Delaware forum. Local 4-786, the USW, and DuPont all do business in Delaware, but Local 4-786 does not do any business in Virginia. Local 4-786's officers, the Edgemoor plant employees represented by Local 4-786, and DuPont's corporate and Edgemoor employees are all located in Delaware, not Virginia. The CBA at issue in this case was entered into in Delaware, not Virginia; Local 4786's grievance was filed in Delaware, not Virginia; and any documentary evidence related to the CBA and the grievance will be located in Delaware, not Virginia. The plaintiffs chose a Delaware forum, and Local 4-786 is not even subject to service of process in Virginia. Indeed, while DuPont has chosen a Virginia forum for its declaratory judgment suit, DuPont's headquarters are in Delaware. A party's choice of forum is given less weight when it "cho[oses] to bring suit in a district that is not [its] `home turf' and that has no connection to any acts giving rise to the lawsuit," as DuPont did in bringing its Virginia action. Arrow Communication Labs. Inc. v. John Mezzalingua Assocs., Inc., No. Civ. 05-357, 2005 WL 2786691, at *3 (D. Del. Oct. 26, 2005) (Exh. I to this Opposition) (citing Burstein v. Applied Extrusion Techs., Inc., 829 F. Supp. 106, 110 (D. Del. 1992)). Thus, the balance of convenience clearly weighs in favor of allowing this action to proceed in this forum.

18

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 23 of 25

As noted, DuPont has sought to justify its choice of a Virginia forum by portraying its Virginia action against the USW as connected to the ARWI action. However, ARWI is independent of the USW, of Local 4-786, and of the New Jersey and New York USW Local Unions. DuPont has no right to force the USW ­ much less Local 4-786 ­ to litigate in Virginia merely because DuPont has sued some other union there. * * * *

In sum, DuPont's motion for a stay is a non-starter because Local 4-786 is not a party to DuPont's Virginia action. See supra at 8-11. And even if that dispositive point could be put aside, a stay is unwarranted because DuPont's action is an improper preemptive strike that should not be permitted to deprive the natural plaintiff, Local 4-786, of the right to choose the forum; and the balance of convenience favors litigating this matter in Delaware, not Virginia. Conclusion For the foregoing reasons, DuPont's Motion to Stay All Proceedings should be denied.

19

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 24 of 25

Respectfully submitted,

/s/ Susan E. Kaufman___ SUSAN E. KAUFMAN (DSB # 3381) Heiman, Gouge & Kaufman, L.L.P. 800 King Street, Suite 303 P.O. Box 1674 Wilmington, DE 19801 Telephone: (302) 658-1800 Facsimile: (302) 658-1473 [email protected] JEREMIAH A. COLLINS JENNIFER L. HUNTER Bredhoff & Kaiser, P.L.L.C. 805 Fifteenth St., NW Washington, D.C. 20005 Telephone: (202) 842-2600 Facsimile: (202) 842-1888 [email protected] [email protected] Counsel for Plaintiff United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers Local 4-5025 DATED: May 24, 2007

20

Case 1:07-cv-00126-JJF

Document 11

Filed 05/24/2007

Page 25 of 25

UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE ) ) ) ) ) ) ) ) ) Plaintiffs, ) v. ) ) E.I. DuPONT de NEMOURS and ) COMPANY, ) ) Defendant. ) ________________________________________________) CERTIFICATE OF SERVICE I hereby certify that on May 24, 2007, I electronically filed the PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STAY ALL PROCEEDINGS with the Clerk of Court using CM/ECF which will send notification of such filing(s) to the following: Kathleen F. McDonough, Esquire Potter, Anderson & Corroon, LLP 1313 North Market Street Wilmington, DE 19899 I hereby certify that on May 24, 2007, I have mailed by United States Postal Service, the document(s) to the following non-registered participants: Thomas P. Gies, Esquire Crowell & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004-2595 /s/ Susan E. Kaufman Heiman, Gouge & Kaufman, LLP 800 King Street, Suite 303 Wilmington, DE 19801 302-658-1800 [email protected] UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS, INTERNATIONAL UNION, AFL-CIO-CLC, and UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS LOCAL 4-786,

C.A. No. 07-126 (JJF)

Case 1:07-cv-00126-JJF

Document 11-2

Filed 05/24/2007

Page 1 of 9

Case 1:07-cv-00126-JJF

Document 11-2

Filed 05/24/2007

Page 2 of 9

Case 1:07-cv-00126-JJF

Document 11-2

Filed 05/24/2007

Page 3 of 9

Case 1:07-cv-00126-JJF

Document 11-2

Filed 05/24/2007

Page 4 of 9

Case 1:07-cv-00126-JJF

Document 11-2

Filed 05/24/2007

Page 5 of 9

Case 1:07-cv-00126-JJF

Document 11-2

Filed 05/24/2007

Page 6 of 9

Case 1:07-cv-00126-JJF

Document 11-2

Filed 05/24/2007

Page 7 of 9

Case 1:07-cv-00126-JJF

Document 11-2

Filed 05/24/2007

Page 8 of 9

Case 1:07-cv-00126-JJF

Document 11-2

Filed 05/24/2007

Page 9 of 9

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 1 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 2 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 3 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 4 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 5 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 6 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 7 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 8 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 9 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 10 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 11 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 12 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 13 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 14 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 15 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 16 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 17 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 18 of 19

Case 1:07-cv-00126-JJF

Document 11-3

Filed 05/24/2007

Page 19 of 19

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 1 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 2 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 3 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 4 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 5 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 6 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 7 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 8 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 9 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 10 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 11 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 12 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 13 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 14 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 15 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 16 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 17 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 18 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 19 of 20

Case 1:07-cv-00126-JJF

Document 11-4

Filed 05/24/2007

Page 20 of 20

Case 1:07-cv-00126-JJF

Document 11-5

Filed 05/24/2007

Page 1 of 7

Case 1:07-cv-00126-JJF

Document 11-5

Filed 05/24/2007

Page 2 of 7

Case 1:07-cv-00126-JJF

Document 11-5

Filed 05/24/2007

Page 3 of 7

Case 1:07-cv-00126-JJF

Document 11-5

Filed 05/24/2007

Page 4 of 7

Case 1:07-cv-00126-JJF

Document 11-5

Filed 05/24/2007

Page 5 of 7

Case 1:07-cv-00126-JJF

Document 11-5

Filed 05/24/2007

Page 6 of 7

Case 1:07-cv-00126-JJF

Document 11-5

Filed 05/24/2007

Page 7 of 7

Case 1:07-cv-00126-JJF

Document 11-6

Filed 05/24/2007

Page 1 of 8

Case 1:07-cv-00126-JJF

Document 11-6

Filed 05/24/2007

Page 2 of 8

Case 1:07-cv-00126-JJF

Document 11-6

Filed 05/24/2007

Page 3 of 8

Case 1:07-cv-00126-JJF

Document 11-6

Filed 05/24/2007

Page 4 of 8

Case 1:07-cv-00126-JJF

Document 11-6

Filed 05/24/2007

Page 5 of 8

Case 1:07-cv-00126-JJF

Document 11-6

Filed 05/24/2007

Page 6 of 8

Case 1:07-cv-00126-JJF

Document 11-6

Filed 05/24/2007

Page 7 of 8

Case 1:07-cv-00126-JJF

Document 11-6

Filed 05/24/2007

Page 8 of 8

Case 1:07-cv-00126-JJF

Document 11-7

Filed 05/24/2007

Page 1 of 5

Case 1:07-cv-00126-JJF

Document 11-7

Filed 05/24/2007

Page 2 of 5

Case 1:07-cv-00126-JJF

Document 11-7

Filed 05/24/2007

Page 3 of 5

Case 1:07-cv-00126-JJF

Document 11-7

Filed 05/24/2007

Page 4 of 5

Case 1:07-cv-00126-JJF

Document 11-7

Filed 05/24/2007

Page 5 of 5

Case 1:07-cv-00126-JJF

Document 11-8

Filed 05/24/2007

Page 1 of 5

Case 1:07-cv-00126-JJF

Document 11-8

Filed 05/24/2007

Page 2 of 5

Case 1:07-cv-00126-JJF

Document 11-8

Filed 05/24/2007

Page 3 of 5

Case 1:07-cv-00126-JJF

Document 11-8

Filed 05/24/2007

Page 4 of 5

Case 1:07-cv-00126-JJF

Document 11-8

Filed 05/24/2007

Page 5 of 5

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 1 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 2 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 3 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 4 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 5 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 6 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 7 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 8 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 9 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 10 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 11 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 12 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 13 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 14 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 15 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 16 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 17 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 18 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 19 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 20 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 21 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 22 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 23 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 24 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 25 of 26

Case 1:07-cv-00126-JJF

Document 11-9

Filed 05/24/2007

Page 26 of 26

Case 1:07-cv-00126-JJF

Document 11-10

Filed 05/24/2007

Page 1 of 5

Case 1:07-cv-00126-JJF

Document 11-10

Filed 05/24/2007

Page 2 of 5

Case 1:07-cv-00126-JJF

Document 11-10

Filed 05/24/2007

Page 3 of 5

Case 1:07-cv-00126-JJF

Document 11-10

Filed 05/24/2007

Page 4 of 5

Case 1:07-cv-00126-JJF

Document 11-10

Filed 05/24/2007

Page 5 of 5