Forrest Bugher v. Jack Feightner D/B/A Feightner Excavating Company
722 F.2d 1356
7th Cir.
1983
Check Treatment

*2 remedy. Feightner has appealed that rul- WOOD, Before BAUER and ing, noting that Queen, under Dairy Inc. Judges, CAMPBELL, and Senior District Wood, 469, 894, U.S. 82 S.Ct. 8 L.Ed.2d Judge.* 44 (1962) the form of remedy requested in the complaint does not control the charac- WILLIAM CAMPBELL, J. Senior Dis- terization of the action legal trict Judge. for purposes of the Seventh Amendment. This is appeal brought by defendant Appellant argues that the complaint al- Jack Feightner, Feightner d/b/a Excavat- leged, in essence, a of contract, breach ing Company, from a judgment entered af- claim traditionally enforced in an action at ter a nonjury Plaintiffs, trial. the trustees law and thus triable to a jury under the funds, certain union trust this Seventh Amendment. For the reasons stat- seeking action delinquent contributions below, ed agree we with the appellant. due as legedly the result of a collective The claim asserted in arises bargaining agreement between the defend- solely under federal statutes. The Supreme ant union. Feightner denied liabili- in stated Curtis v. Loether, 415 U.S. ty, claiming at trial that the multi-employer 189, (1974): collective bargaining association which had The Seventh purportedly signed Amendment does apply on his behalf did not enforcing authority statutory rights, re- him. bind Feightner also quires a jury upon demand, made timely trial, demand for if how- ever statute the district creates remedies, granted rights the plain- tiffs’ enforceable in an action for motion to damages strike that demand. A bench the ordinary courts of law. held and the U.S. judge found for S.Ct. at 1008. plaintiffs, entering a judg- ment the nature analyzing defendant rights for the delin- creat quent ed contributions, statutes fees, attorneys’ issue we audit must first fees, costs, look to legislative and a intent surcharge. and if that Feightner decisive brings appeal must contending determine whether rights that under facts of this remedies that type he was not bound to traditional ly enforced in an action at law bargaining or in agreement, and equity, see Pernell v. Southall Realty, the district court erred in striking his for a S.Ct. demand trial. L.Ed.2d (1974). Plaintiffs’ complaint alleged that their claim arose under The Labor-Management Relations Act the civil enforcement provision of designed enacted 1947 and was Employee Retirement Income Security Act (hereafter permit the courts create a federal “ERISA”), and 29 contracts, 185(a) of common law of labor see Textile Labor-Management Mills, Relations Workers v. Lincoln Act. While Union America seeking monetary relief complaint only requested remedies, i.e., (1957). The statute is on the silent issue accounting and a grant specific perform- trial and the ance. Contemporaneously with history similarly unenlightening. filing As of his answer, the appellant result, demanded a has Seventh issue jury trial. Prior to trial appellees generally been resolved on a case-by-case filed a Motion to Strike Defendant’s through analysis rights basis Jury De- * The Campbell, Honorable J. Illinois, William Senior Dis- sitting by Northern District of Judge trict designation. the United States District Court

remedies Aerospace resentation); claiming breach International of cert. to collect by (5th ing agreement duty of ry Inland v. the court concluded that meaning (7th “condition bargaining process. S.Ct. contributions stantive trustees and Mill der those cases (1979); see Inc., Cir.1962); Calhoun the union and ity, sidered damages for breach v. recognized at the defenses 185(a) became C.H. America, Benedict Coal employee-beneficiaries labor scheme the trustees Cir.1975) (jury trial claiming breach of Cir.1979) (jury Cir.1964); Huge v. Cir.1948), cert. den. den. 434 Ridge mandatory 489, 4 L.Ed.2d 442 status Steel Co. Masland to be third fair 757 being of 29 U.S.C. basis 93 L.Ed. royalties 162-163 fn. bargaining America, representation Coal, Inc., (1978) also Alvares Nedd 556 common unions to Union, United by asserted, pensions of union’s employment” can v. subjects Agricultural nonperforming pension F.2d 190 employer. party Corp., 361 U.S. (3rd for Sons, v. (no jury trial suits N.L.R.B., trial in bring plan jurisdictional Thereafter, 29 U.S.C. Bernard, United UAW, § law, see agreement pension initially Long’s Hauling Cir.1978), cert. den. contract, subject to 298 F.2d collective beneficiaries within the 158(a)(5) and thus see Inc., collect brought by plan funds, see Lewis (1960); Lewis duty of pensions of the collective employee by (3rd employee’s 61 L.Ed.2d 285 Cir.1975). Un- and breach Mine e.g. compel In that Erickson, 170 607 union). Automobile, Kaiser fund); Cox within Implement defined delinquent Minnis v. Cir.1977), promisors that case F.2d fair F.2d 247 bargain- and sub- F.2d 739 are con- between statuto- 960, were a action capac- union Steel *3 rep- 138 Co., ac- 69 of however, traditionally breach 859 fn. a delinquent ble to a § expanded 899. ment, participants, of union provides: S.Ct. fiduciaries, Corp. v. Queen, supra, leged which, only supersede ciary rights under would However, priate pant, title In 1974 (a) duty]; duciary obtain 185(a) (i) to enforce or the chapter employer, (2) (3) by authority for A [*] Therefore, Scott a cause trial.1 Our have 8, 70 L.Ed.2d [relating of contract by by civil Mullins, 455 violates either redress relief under jury under pension actions. or (A) to any provisions for we terms the trustees’ its own contributions the civil enforcement no Jf review the terms action participant, beneficiaries, and fiduciaries scope 369 of action Neely, 140 U.S. 35 party appropriate difficulty Secretary, altered the in an action enjoin any provision such to breaches of the analysis cannot L.Ed. 358 185(a). U.S. at plans. [*] is, If that of remedies may or must also enacted ERISA terms, authorizes trustee’s can at law if section fiduciary violations any third it was under § be [*] holding beneficiary, properly plan; statutory scheme or With subsection 477, 82 brought— trustees’ this act or damages (1891); Dairy and thus plan, this cause by party in this 106, 110, 11 of this available [*] intended subchapter for A determine 29 U.S.C. regard 29 U.S.C. or end 1132(a)(3) fiduciary or demand Amend- S.Ct. practice suit partici- of this statute benefi- appro- rights (ii) to which (B) to or fi- here, [*] tria- case. sub- only for Corp., 361 U.S. apparently first one of issue is While this (W.D. F.Supp. Keppie, Lewis v. anticli- impression, holding is somewhat our Cir.1961). (3rd We 1960), aff’d 287 Pa. trials fact view matic judge afforded was not note that district reported this cases of two been held in below, briefs in the cases benefit of these of the Seventh (albeit discussion without appellate briefs. they in the cited nor were issue), Benedict Coal Lewis v. see history of ERISA demon- tive and financial affairs, (2) to im- strates that 29 U.S.C. was in- prove the equitable character and sound- supplement tended to rather supersede ness of private pension plans by requiring rights existing under 29 U.S.C. them 185(a). (a) to: vest the accrued benefits of employees significant periods of Initially, we ser- note 514(d) that § of ERISA vice with an employer, (b) (29 meet minimum 1144(d)) provides: standards of funding, (c) guarantee (d) Nothing in this subchapter shall be the adequacy of the plan’s assets alter, construed to amend, modify, invali- the risk of plan prior termination date, to com- impair, or supersede any law of the pletion of the normal funding cycle United (except States as provided in sec- insuring portion tions unfunded 1031 and 1137(b) the ben- title) or any promised. efits rule regulation House Report issued under any such 93rd Cong. law.2 2d reprinted Sess. in 1974 *4 Furthermore, U.S.Code Cong. Admin.News, legislative pp. 4639, history does not conflict with provision. 4655-4656. In Senate Report 93-127 the There is Committee on Labor evidence in the legislative histo- Public Welfare ry discussed existing Congress law: found fault with the At the court’s level, application of there are essen- 185(a) U.S.C. § to tially three federal lawsuits which, involving statutes pensions or that it in- though accomplishing tended to different purposes render that application obsolete. and vested within different While 29 federal de- U.S.C. 1132(a)(3) grants fiduci- partments for enforcement, (as are all aries com- well as participants and beneficiar- patible in their regulatory responsibilities. ies) the right to seek equitable relief, that These are the Welfare and Pension Plans was designed to counter a tenden- (29 Disclosure Act U.S.C. Sec. 301 et seq.),; cy of the courts to refuse such relief: investment, benefits, intended to establish nor does it provide standards for the preservation of vested The Act is not of pension funds administered jointly by an employer and a union. lines for the establishment and operation 404, 501-503). Sec. Revenue U.S.C. the Labor-Management Relations The Labor-Management % Sec. provides the Code funding adequacy, security of % or fiduciary conduct. Senate (I.R.C. et seq.) and the Internal ^ fundamental Relations Secs. 401- Act guide- [*] Act, (29 in the legislative history was of ERISA. One of the concerns ployer Pension Plan Amendments Act which contained substantial modifications Northwest See In No. cal document wording. Senate Report ture and are reluctant also, Courts strictly interpret equitable Laborers Fringe Benefit Funds v. supra Concrete, Congress enacted the Multiem- relief or to disregard techni- at 4842. to apply concepts that: plan expressed inden- Cir. Report [SJimple 93d collection 2d Cong. actions brought by Sess. re- printed in plan U.S.Code Cong. & been converted Admin. into News, pp. 4838, 4840, lengthy, costly and complex litigation These concerning latter claims concerns were and defenses major objec- unrelated tives of the to the proposed employer’s promise act: plans’ and the entitlement to designed (1) to [ERISA] contributions. establish Staff Comm, minimum standards of Senate fiduciary conduct Labor and Hu- for Trustees, man Resources, Administrators S. 1076: and others The Multiem- dealing with ployer plans, retirement provide Pension Plan Amendments Act of through enforcement civil 96th Cong., (unnum- 2d Sess. 44 sanctions, criminal to require adequate bered Comm. Print April 1980) (1980 Sen-

public disclosure to plan’s administra- ate Labor Print) Comm. repeal Section 1031 relates to the of the Wel- tential conflicts of interest in the administra- fare and (which Pension Plans Disclosure Act the Act. replaced) ERISA 1137(b) po- addresses promulgation in its characterization added problem address To accord, Ca provisions, enforce- enforcement ERISA bolstered Cir. Spivey, 1132. While lamia 29 U.S.C. provisions ment a different to sim- addressed Wardle objectives 1980).4 one of actions, we do there U.S.C. § collection of 29 delinquency plify subsection to eliminate intention a different of an with no evidence involved claim here make or to not find do We right background. historical enforcement.3 means hold the exclusive between our any conflict in Labor had the Sixth that of ing conclude We i.e., claim for them, The sole Funds, supra. remedy available Fringe Benefit ers under contract trus plan for breach damages in that case issue an as well em injunction seek could tee 1132(a)(3). plan comply failing ployer issue the Seventh this situation bar provisions contribution The Queen, supra. Dairy is controlled concluded agreement. gaining not con- complaint does form of was authorized injunctive characterization trol appropriate and was at 477- legal, 369 U.S. either While before it. facts necessary at 899-900. in congressional emphasized the court to maintain prerequisite rem use of encourage the tent to unavailability of determined, as cases, it still in ERISA edies *5 478, 82 law, U.S. at at remedy adequate not was matter, that there preliminary showing no has been 900. There S.Ct. at authorizing at before remedy law adequate even inadequate, is legal that the injunction. the the issuance defend- analysis that assuming in order necessary appellant records that ant’s business Having determined damages, 369 measure compute to by virtue ato entitled was Therefore, 900. at 479, 82 S.Ct. U.S. at Amendment, not reach we need construe whether him on this raised issues factual as a joinder claim solely va- judgment Accordingly, appeal. at actions, see equitable legal and proceed- remanded cated concurring), J. (Harlan, opinion. with this consistent ings trial on ato was entitled the appellant issues. the legal in Judge BAUER, Judge, concurs Circuit with not conflict does herein holding Our opinion majority Campbell’s Central in Wardle decision this court’s follows. concurrence, which Judge Wood’s Areas and Southwest States, Southeast Cir.1980), Fund, 627 F.2d Pension Jr., WOOD, HARLINGTON 922, 66 cert. den. concurring. Judge, case, court In that opinion, majority I concur While to a right was no that concluded points a few add must respectfully I aby brought an action trial in correct I believe what out round 1132(a)(1)(B). under by jury to trial right to the approach were traditional- such actions that reasoned ERISA, U.S.C. 502(a)(3) of Section Congress that in nature ly equitable 1132. § altering no intention had indicated interesting note all actions, it pro managers the floor note that 3. We solely under 29 three involved they endorsed cases stated posed Act both Huge including de- 185(a), § Corp., supra; Coal v. Benedict Co., as Lewis such of ERISA. enactment Cong.Rec. cided after Inc., supra; 126 Hauling Long’s 1980) (remarks of Aug. (daily ed. H7899 in an reached (daily conclusion An Cong.Rec. identical S1 4. Thompson), 126 Rep. brought under 29 Williams). employee-beneficiary 1980) (remarks of Sen. Aug. ed. Mine v. United Nedd § discus cited cases those While America, supra. collec- to trustee appropriate defenses sions of agree I that ERISA 502 was enacted If § equitable relief is appropriate in par- encourage the grant courts to equitable re case, ticular a court must allow plaintiff lief. This policy position codified, how proceed under ERISA 502 with § ever, with qualification § right to trial by jury. If, however, a court that the action seek “appropriate” equitable equitable finds inappropriate, relief. The legislative history provides no plaintiff may proceed not indication intended to create Frequently, action, a new form equitable action that would plaintiff also sues under Labor-Manage- be free from conventional analysis ment Relations Act (LMRA) which courts generally perform must to de-: U.S.C. This express its termine relief would be language provides jurisdictional basis, appropriate in a given case. before and, under Textile Workers Union Amer- granting equitable relief under ERISA ica v. Lincoln Alabama, Mills of 353 U.S. 502(a)(3), a court first must determine 448, 456, 1 L.Ed.2d 972 relief is appropriate. (1957), also provides a substantive basis for both legal

When union fund trustees have sued un- claims under the der 502(a)(3)(A) enjoin federal labor common law. to a from future violations of collective bargain- jury trial under LMRA 301 is decided on ing agreements, the courts have assessed case-by-case basis depending upon the irreparable harm, balance of hardships, and nature of the claim. Once having decided forth, so to determine injunc- whether an the suit is for ERISA tion should See, issue. e.g., Laborers purposes, the same holds true LMRA, Fringe Benefit Funds —Detroit Vicinity and a right to jury trial exists. Northwest Construction, Inc., Concrete & This analysis does not conflict Cir.1981); Central with our decision in Wardle v. Central States, Southeast and Southwest Areas States, Southeast and Southwest Areas Pension Fund Admiral Merchants Motor Fund, Cir.1980), Inc., Freight, 511 F.Supp. 38 (D.Minn.1980), denied, cert. aff’d sub States, nom. Central Southeast *6 L.Ed.2d 841 In Wardle plaintiff the and Southwest Areas Pension Fund v. Jack styled his suit as one for damages, and the Cole-Dixie Highway Co., 642 F.2d legal remedy would have been adequate Cir.1981); Operating Engineers Central under the circumstances. While we hold Fund Joski Co., Construction here a suit under specific ERISA for F.Supp. 849, 850 (E.D.Wis.1977) (because performance is really a legal cause of ac Congress did not supply test, a different tion, in Wardle we held that an ERISA applies the usual test before granting damage action was equitable and denied the injunction). Likewise under 502(a)(3)(B), plaintiff’s jury request. the trial court must look beyond the fact the present case, Unlike plaintiffs seek relief Wardle involved sounding in equity action under ERISA ERISA 502(a)(1)(B) by expressly potential mandates equitable of a relief. trust against As in fund any suit the specific trustees performance, pay pension refusal grant of bene- that, relief is fits. We in the held court’s sound dis- ERISA cretion. Equitable reviewing the is available trustees’ decision as only to dis- as a when trust, substitute bursements from is role of the inadequate impracticable. courts Dairy Queen, merely to determine Wood, Inc. v. whether the trustees’ action was arbitrary, L.Ed.2d 44 capricious, Symons, S. or in bad faith. Id. Pomeroy’s Equity Thus, Jurisprudence ERISA judicial maintains limited ed. As the majority opinion of review trustee actions that developed notes, the necessary prerequisite of trusts, inade- under the law of for both federal of quacy the legal remedy was not in met courts state which have courts concur- this case. jurisdiction claims, rent 502(a)(1)(B) over § suits under prerequisite the trust Due 1132(e)(1). see 29 U.S.C. equitable. genuinely be judicial the limited suits of such

nature congressional role, Wardle determined to a on the

silence to continue an intention reflects suit type of this treatment historical 829.1 Id. at

equity. contrast, involves case, in contrac- on his suing his- No clear HOLOGRAPHICS, to the trust. obligations INC. tual INDUSTRIAL exists Yu, treatment pattern Roger K. torical per- suit, so is not Plaintiffs-Appellants, na- traditionally equitable meated beneficiary’s suit trusts as ture DONOVAN, Secretary La- Raymond J. Further, judicial trustees.2 Department of bor, States United review of not limited cases is in such role Training Ad- Labor, Employment arbitrary actions under trustees’ Defendants-Appellees. ministration, same standard, but capricious sued That No. 83-1057. action. contract behalf but on recovery own not Appeals, States United this suit to make enough is not trust Circuit. trus- where contexts equitable. with the Sept. a contract Argued on promisor tee sues the di- trust as trust, the existence 20, 1983. Dec. Decided displace alone would not promisee rect nature contractual standard otherwise Bernhard, 396 U.S. Ross v. action. Cf. 733, 738, 24 L.Ed.2d

531, 538, 90 S.Ct. legal claims

(1970) (right action). derivative

shareholder’s ac- assumed Wardle

while 502(a)(3), our may be

tions na- inherently

discussion fiduci- beneficiaries by suits

ture of fiduciaries suits extend to

aries did *7 eliminate we did not employers, survey trustee where of cases 2. A Eighth followed Circuits have The Fifth and and ERISA employers under LMRA (8th Vorpahl, In re See Ward/e. trials, see, reveals some bench went Spivey, F.2d Cir.1982); v. Calamia son, Services, F.2d Inc. v. Rolf e.g., Audit States, Cir.1980); v. Diano Central accord Cir.1981) (right Health Areas Southwest Southeast Bernard, raised); v. Calhoun Funds, F.Supp. 861 and Pension Welfare (same); Fund Cir.1964) Central cases, how- line of (N.D.Ohio Another Engineers Operating International Union ever, not availa- relief is has held Bryant, 80-3175 Employers No. Participating ERI- participants and beneficiaries ble to (C opin 31, 1980) (unpublished Dec. .D.Ill. implying 502(a)(1)(B) because §SA employer’s ion) (denying defendant superflu- would be under this subsection demand, Judge order relying Steckler’s expressly mandated it when ous trials, see, e.g., case), some Castrovinci, 476 502(a)(3). Pollock v. See Corp., 361 U.S. Coal Benedict Lewis v. opin- (S.D.N.Y.1979), F.Supp. aff’d without Stamps Cir.1980); (2d ion, 622 F.2d 575 (W.D.Pa. F.Supp. Kepple, 185 Lewis Michigan Joint Council Cir.1961) (memo Teamsters (3d aff’d, 1960), (E.D.Mich.1977). F.Supp. randum).