Pipeliners Local Union No. 798, Tulsa, Oklahoma, and A. Leroy Jones v. Fred H. Ellerd

to me that clear all this it seems From ques- sufficiently substantial is a constitutionality require as to tion three-judge court, convening see of a supra. Education, v. Board Rosenthal NO. UNION

PIPELINERS LOCAL Leroy OKLAHOMA, TULSA, and A. Plaintiffs-Appellants, Jones, Breitenstein, Judge, Circuit con- result, opinion. curred ELLERD, al., Fred H. et Defendants-Appellees. No. 73-1880. Appeals, States Court

Tenth Circuit.

Argued July 1974.

Decided Oct. by Ralph Pinkham. After Inter- 10% mountain’s bid accepted, it entered joint

into agreement a 50-50 venture with W. C. Associates, James and (Associates), corporation quali- Utah fied to do business in Colorado. Asso- ciates’ stock is owned Louis R. 51% by Morava and W. C. James. Un- 49% joint der the agreement, venture Rocky Mountain Natural Gas Company fully informed, was Inter- mountain towas furnish most of the equipment and Associates was to furnish financing. joint The venture hired general project W. C. James as its man- ager. operate It was to under the trade corpora- name of Associates. A third tion, James, (James, Inc.), W. C. Inc. corporation, Nevada whose stock is by owned W. James and his C. 100% wife, equipment leased some of its to the joint August thereto, Prior venture. James, Inc. had entered into a bargaining agreement collective with expired by Union which its own terms April 30, on 1973. Neither Intermoun- signators tain or Associates any bargaining agree- other collective Hampe, Louis, ment with Union. Robert A. Mo. St. (Richard Daly, Louis, Mo., L. St. on April Jones, In as business brief) appellants. for Union, agent of contacted W. C. James Clarke, Denver, (David Jon B. Colo. J. employment about the of Union welders brief) Clarke, Denver, Colo., ap- on helpers project. The and welder joint pellees. employ declined to them. venturers May The construction commenced was BREITENSTEIN, Before Mc- welding work- of 1971 with non-Union BARRETT,

WILLIAMS and Circuit members ers. Jones insisted that Union Judges. project. employed As- should employ sociates continued to refuse Judge. BARRETT, Circuit morning Saturday, them. On Pipeliners (Un- Local # Union project May came Jones ion), Leroy (Jones), and A. Jones Union members area with some 20 to 26 September from the shutting purpose down the with the awarding Equip- Intermountain job. Union members Jones and the Rentals, (Intermountain) ment pri- fence and entered climbed over a $5,731.83 and counterclaim. costs right-of-way they off vate where shut Intermountain, corporation operators equipment a Utah instructed the qualified Colorado, They to do business Associates’ do so. threatened submitted its bid to the Un- construct miles workers. Jones and non-Union gas Miguel jobsite pipeline of natural leave the San ion members refused to County, Colorado, Rocky finally so Mountain until ordered to do Company. County, Natural Gas Colorado. Intermountain’s of Dolores Sheriff necessarily stock cancelled for is owned C. James and All work W. was 90% day. Miguel, counties of the balance of that Associates felt San Montrose and deputy Dolores, Colorado, compelled hire a sheriff the three sheriffs patrol job- night counties, individually watchmen to these their three succeeding together day, capacities, official with W. C. site day. James, James, Sunday, not a scheduled work Inc. and Intermountain. alleged appeared Complaint at The members the events of and Union Jones Monday May 1971, giving again briefly jobsite rise to the Civil Rights permanent action, morning. lost the occurred at a time when Associates project and the two members were Jones Union of twelve workers. services parked car, jobsite replacements up off of the on a until their held public highway, qualified and when were not for their as- hired and could be interfering activity. signed work tasks. alleged rights They under the County testi- of Dolores The Sheriff Fourth, Amend- and Fourteenth Sixth morning by deposition that on the fied ments Constitution jobsite, 29th, May told at the Jones contrary violated, were to the States had him that and the members he Union Rights Act, 42 Civil U.S.C.A. §§ job to the down. He testified come shut search; and use to-wit: Unlawful belligerent; very that he that Jones was physical and without violence abuse guns in a van three hand observed cause; unlawful search of the automo- highway; parked on that he was the bile; frisking and unwarranted abusive by workers told one of the non-Union the two Union Jones and members and had told Jones his associates striking company; his violent of Jones “get and sit down” them to over here rendering unconscious, him with further they beat the hell” out of them. “will physical by fists, abuse use of of Jones Miguel County Ellerd of Sheriff San resulting required care, which medical Monday by deposition testified that on entitling permanent impairment Jones Saturday morning following jobsite the damages $250,000.- to award of actual encounter, were es- he and other officers ordering 00; and com- Jones his Union jobsite corting workers to the non-Union panions get to out of the three counties ques- Ellerd when confronted Jones. he depu- named, above with instructions reported tioned about rock- Jones ty by to consider sheriffs Ellerd Sheriff throwing Sunday. El- incident While of the Jones and other Union members frisking Jones, lerd made a was Jones dangerous” in- as “armed and and with quick Ellerd who turn. alarmed This kill”; structions “shoot after struck the chin with an Jones leaving the fol- scene the three sheriffs palm. compan- lowed to and insure that Jones Jones Union contend counties; ions left the three that on that when Jones and the Union members May W. C. informed James jobsite, did went so for the appeared jobsite, Jones that if he the purpose “visiting” with sole W. C. police James would to cause call regard James to the collective bar- jail. Jones to be thrown In addition gaining agreement en- Union had damages sought by Jones, to actual both James, tered into with sought punitive and Union dam- Jones ages $1,000,000.00 each, against Following May 29-31, the events of defendants and each of them. continued Associates the construction project work on the with em- non-Union gener- Intermountain filed an Answer ployees. pay any did not Associates ally denying allegations of the Com- fringe benefit contributions to the Un- plaint and, an affirmative defense project ion’s benefit was fund. The pled damages any injuries suf- July, completed in by plaintiffs fered were while July 6, 1971, the en- instant suit Jones the Union members were by against filed Union gaged provisions Jones in a violation of of the Act, violation of the C.R.S.1963 Colorado Labor Labor Peace Peace Colorado through 80-4-22, entry prerequisite as Act which is a Ann., Ch. 80-4-1 addition, counterclaim; Intermountain In amended. granted alleging (4) damages counterclaimed, that because for a suni of engen- money May paid 29-31, “watchmen” which was the events remote; plaintiffs, improperly permitted dam- too by been it had C.W. dered involving percentage James to estimate aged $14,808.25 of ef- costs material, ficiency job, lost on the protection an of laborers operators, opinion; five unsubstantiated replacement three conclusion and helper efficiency” job- laborers found a three “loss on the welders, one following lacking evidence; jobs site, quit threats substantial and, who granted judgment together de- plaintiffs, with made counterclaim days’ produc- lay of at least two and loss Intermountain failed proof. project. meet its burden of tion on During November the months of December, moved 1971, the defendants I. Complaint. for dismissal Union’s At the threshold we must determine defend- Memorandums filed jurisdic- whether the District Court had asserting Com- the Union's ants tion over Intermountain’s counterclaim plaint of action. to state a cause failed following dismissal of Com- did file a memorandum Union plaint prejudice. and all claims It February opposition to the motions. On appellants is the contention of Court dismissed the Union’s jurisdiction Court was without over the Complaint. prior counterclaim volun- view of the 26, pursuant September tary Complaint dismissal of the stipulation court an oral made plaintiffs in that counterclaim September en- Order was an permissive mandatory rather than na- dismissing prejudice tered ture. Union and contend that fol- Jones Complaint re- both Union and Jones lowing dismissal of Complaint, lating against par- all to all claims and counterclaim failed for of an inde- want agreed parties the coun- that ties. All pendent requisite jurisdiction basis terclaim of Intermountain survived 13(b), Fed.R.Civ.P., under Rule 28 U.S. with- that it be tried to the Court should argues, C.A. Intermountain alternative- Following jury. trial the Court out a (a) ly, was based counterclaim: fact, findings oral conclu- delivered independent jurisdictional grounds, i. which of law and from

sions diversity e., citizenship and amount taken. controversy required satisfy 28 1332(a); (b) even if allege U.S.C. jointly § Trial Court jurisdictional ground independent no (1) improperly it entered error in that: support exists, the counterclaim February granting 9, 1972, its Order properly ancillary juris- Court retained defendants-appellees Dismiss Motions to diction, is com- ground counterclaim complaint it Union’s pulsory. upon relief a claim failed state granted; (2) into it admitted could be 13(a), Fed.R.Civ.P., provides, in- Rule I, D, Exhibits evidence Intermountain’s ter alia: T-3, 1, T-2, “business T-4 and S as D— (a) Compulsory Counterclaims. though quali- did records” even pleading A shall a counter- state as Records fy under the such Business claim claim the time of Hearsay Rule, which at exception fur- serving pleading pleader has fail- reason Intermountain’s ther against any opposing it party, proper foundation ure to establish if occur- (3) or admission; arises out transaction to find a it failed 1198 grounds subject jurisdiction

rence that is the matter being party’s opposing claim of the view im- .... Bank pliedly jurisdiction consented to the (Emphasis supplied). court, the counterclaim main- compulsory counter A related or F.R.C.P., tainable under Rule 13(b), distinguished permis from a claim—as compulsory permissible. whether pleaded it sive counterclaim—must Federal 13.- See 3 Moore’s Practice §§ Wright Miller, Fed See is barred. (Emphasis supplied.) 221 18-13.19. Procedure, Civil § eral Practice and F.2d at 390. 1417 and cases cited. given The courts have the terms may court as A federal district “transaction” and “occurrence” con jurisdiction claim which is sert of a supra, tained flexible and of, ancil continuation or incidental and realistic constructions order to effect lary to, principal it over which claim “judiciaPeconomy”, e., i. trial in one ac might jurisdiction, has tion of all related controversies between ancillary jurisdiction not have of the parties and, course, the avoidance proceedings independent if it were an multiciplicity of suits. Southern original proceeding. action or Aet Co., Pickard, Construction Inc. v. 371 Company Chicago, na Insurance v. Rock U.S. 83 S.Ct. 9 L.Ed.2d 31 Company, Island Pacific Railroad ; (1962) Moore v. New York Ex Cotton (10th 1956); Wright, 229 F.2d 584 Cir. change, 70 U.S. S.Ct. Procedure, Federal Practice and (1926); L.Ed. State of Iowa v. Un at lary because the ancil 69-71. This is so Asphalt Roadoils, Inc., ion & dependent claim is referable to or (8th 1969); Lakes Rub Cir. Great jurisdiction over court Corporation Cooper Co., ber v. Herbert principal proceeding. suit or (3rd ; Inc., 1961) 286 F.2d 631 Cir. Acord, (10th States 209 F.2d 709 Cir. Indemnity Company Falls v. Unit Glens 1954). In National Bank of Inter-State Westinghouse ex rel. Electric ed States City Luther, Kansas 221 F.2d 382 (9th Company, Supply 229 F.2d Cir. 1955), cert. dismissed 350 U. 1955); Wright Miller, Federal S.Ct. 100 L.Ed. 823 S. 76 Procedure, See Practice and 1409. § (1956), held we that: Fed.R.Civ.P., 54(b), Rule 28 U.S.C. also 13, F.R.C.P., Counterclaim under Rule A. recoupment, includes both setoff and It has been most said and is broader than either that it attempting define rather than courts, may includes other claims and be used supra, pre key 13(-a), terms of Rule as a basis for affirmative relief. See suggest preferred cisely, stand have Pleading, Clark Code 2d Ed. cited compulsory permis which the Practice, ards 13.02, p. 3 Moore’s Federal § specific counterclaims nature of sive 13(a), F.R.C.P., provides Rule (1) may the issues Are compulsory be determined: counterclaim “if it arises by the claim and raised of fact and law out of the transaction or occurrence (2) largely same? subject counterclaim op- that posing is matter of the * * subsequent judicata bar a res Would party’s claim *.” Rule absent claim on defendants’ 13(b) provides permissive suit compulsory coun- (3) Will counterclaim rule? only terclaim . . . difference support substantially the same evidence . we need to note that the is de well as claim as compulsory being or refute counterclaim, ancil- Is (4) and counterclaim ? lary fendants’ claim, jurisdic- derives its logical relation between source, tion from the whereas a same See counterclaim? arising and the claim Wright permissive counterclaim Miller, Practice Federal occur- out same transaction or of the 4, p. 42 Procedure, Ch. upon independent Civil § rence must rest totality Miller, of the cases cited. On the Federal Practice and Proce- many dure, presented, Civil, 4, p. 78; facts we hold that while Ch. §§ 2365 largely 7, p. 175; of the of fact and law are Ch. issues Wright, Law Federal same, Courts, (2d much of the 1970). and while same Ed. §§ plain- support refute evidence would Appellants argue that the trial tiffs’ claim as well defendants’ coun- as finding, prior court erred in ing to the hear terclaim, compelling eom- the one test of counterclaim, that Union’s pulsoriness met here that both the is Complaint had failed to state claim original plaintiffs-appellants claims granted. which relief could be Mo defendant-appel- and the counterclaim of against tions to Dismiss were filed Un lee arose out of the “transaction or same Complaint by ion’s all of the Defendants. logically occurrence” which relate February 9, 1972, the Court entered origin. common reason granting its Order the Motions to Dis “logical relation” con- test the most ground “complaint miss on the that the trolling. York Ex- Moore v. New Cotton plain does not state a claim in behalf of change, supra; Wright, Law Federal tiff, Union, upon which relief can be Courts, Ed., Counterclaims, Ch. granted against any as defendant.” In pp. Holtzoff, 346-347; Barron & 1A termountain contends that consti Wright ed., 394. filing requiring tuted a final order juris The exercise of federal F.R.A.P., notice of under Rules against parties diction over to 3(a) claims 4(a), U.S.C.A., independent whom no there exists basis days clerk of the district court within 30 jurisdiction for gies finds substantial analo appealed of the date of the Order from. joinder parties in the of new under We hold that the Order was not final ancillary jurisdiction the doctrine of judgment, however, order or compulsory within the coun context of requirements does not meet the of Fed. supra. terclaims under H. 54(b), R.Civ.P. for failure U.S.C.A. Company Applewhite, L. Peterson express to contain an determination that (5th Albright 1967); Cir. delay express there is no reason for 1966); Gates, 362 F.2d Cir. ly directing entry judgment. Ab Corporation v. United Artists Master sence thereof failed to terminate Union’s piece Productions, Inc., 213 action as to claim. Prior to the trial (2nd 1955). also These decisions are counterclaim, on Intermountain’s how deciding authorities for the rule that in ever, did, counsel for Union and Jones “occurrence”, what is a “transaction” or explicitly court, unqualifiedly the terms must be accorded liberal con stipulate par all to all actions “as And if struction. the counterclaim exception parties ties with the compulsory, held to be it is settled that the counterclaim” were dismissed with ancillary jurisdiction the court has to prejudice, party pay each to own its though decide it even II, pp. 2-4). stipu (R., costs. Vol. The claim be Moore v. York dismissed. New Sep lation was made in court on Exchange, supra; Kirby Cotton v. 24, tember hold it consti 1973. We Company, American 194 Soda Fountain voluntary tuted a of the com dismissal 141, 619, plaint U.S. 24 48 L.Ed. S.Ct. 911 and claims of Union and Jones (1904); United & Bene supportive States Use of the Order of Dismissal en D’Agostino Excavators, fit v. by of September 26, tered the Court on Heyward-Robinson Company, F.2d (R., 430 VI, p. 100), 1973 Vol. (2nd 1970), stipulation 1077 Cir. cert. denied 400 no formal of dismissal 1021, 582, signed by U.S. L.Ed.2d 632 parties 91 S.Ct. 27 of all to action (1971); Corporation contemplated Fed.R.Civ.P., Atlantic v. United by States, (1st 1962); 311 F.2d Cir. 907 No contention 28 U.S.C.A. Trotter, Home Ins. Co. of New York v. made that the Trial Court abused its Wright (8th 1942); 130 F.2d entering 800 Cir. in discretion of Dis- Order

1200 September 26, edge, regularly 1973. We hold or that him missal submitted to Operation ordinary it did v. in that Amigo, not. Davis course of business. Inc., (10th F.2d S, 101 Cir. Mott 378 testified that I and Exhibits 1967). daily significant, believe, records, It is personally pre we cost were pared appellants’ supplemental by daily weekly memorandum him on a ba appeal predicated, part, invoices, order sis footages in upon refers dismissal September 26, 1973, achieved, as one “voluntar- and time cards turned agreed ily” upon by plaintiffs-appel- by in phase the foreman of each voluntary project’s day’s prior (Vol. II, pp. lants. The dismissal consti- work. 78-80). appellants’ upon 41, 43, 44, bar 55, tutes a to attack All of the exhib 9, February the Order of Dismissal its were identified and utilized Mott personal knowledge, of based Bank either on his See Inter-State National City supra. Luther, kept v. accounts in Kansas reliable and records ordinary They course of business. Appellants now be cannot heard qualify as “business records” within the their contention that the Trial Court exception. hearsay v. rule United States entering February in order of erred (10th 1972), Sparrow, 470 F.2d 885 Cir. dismissing complaint 1972, 9, Union’s 1913, cert. denied 411 U.S. S.Ct. 93 ground it “does state Woodring (1973); 36 L.Ed.2d v. 397 (cid:127) . claim . . can relief States, (10th United Cir. 376 F.2d 619 granted” subsequent light 1967), denied cert. 389 88 S.Ct. U.S. voluntary respective of their dismissal (1967); 19 L.Ed.2d 182 Powell complaints That action. causes Brady, Colo.App. 406, 30 496 P.2d 328 ju- being so, the District Court then had (1972); ad 28 U.S.C.A. 1732. The only risdiction over Intermountain discretionary missibility of evidence is counterclaim. dis with trial court and will not be clearly erro turbed on unless II. Brumley, neous. States v. 466 (10th 1972), denied F.2d 911 Cir. cert. allege Trial er Court 412 L.Ed.2d 93 S.Ct. 37 U.S. In in the admission evidence ror (1973); Acree, 466 United States D-l, T-2, I, D, Exhibits termountain’s T-3, (10th 1972), Cir. cert. denied records” T-4 as “business L.Ed.2d U.S. 93 S.Ct. qualify under did not Okada, (1973). Hodgson v. exception And in thé Records Business Intermountain hearsay 1973), rule and that we said: proper foundation establish failed to The court found “there are trial for their admis and basis identification permit adequate no records which sion. anyone degree compute, challenged certainty all, the of under- exhibits at amount Each payment.” proceeded Trial The Court and identified listed (R., VI, p. computations underpay- pre-trial Vol. make its order. Court’s 92). expenses pickers They ment on the basis related resulting testimony pickers from of three of con- Intermountain depositions, trial encounter tained which the members Jones-Union project represent They property. en a maze court observed to “constitute regu complete kept by total confusion.” Intermountain tries averaged wages ordinary its from of business. Court then the course lar and testimony, adjust- deposition manager, V. the Jack made office Intermountain’s figure ments, of Mott, of exhibits arrived each the and at the that testified $1,279.90 predicat- pertaining amount represented as the due records jobsite pickers worked and the ed thirteen who “permanent records per days per in 44 hours from week or for construction” records SYz personal knowl- his week four weeks. 472 at within for formation allegation held award not We We there that the hold that this cannot be arbitrary. Fox, And in Boehm 473 construed to foreclose Intermountain’s right 1973), independent we held that an remedy. The is- notwithstanding timely objection sue a was resolved the Colorado Su- testify preme lodged may trial, a Building at witness Court in Denver and original from in lieu of summaries Construction Shore, Trades Council v. memory, if used to refresh records his Colo. (1955). 287 P.2d 267 testimony employer that is not violative There and such invoked the Act ain objection injunctive rule. suit of the best evidence for damages. relief and testimony, lodged defending to the was based The union contended that the witness, upon ineompetency employer’s remedy exclusive was via ad- lay foundation, proceedings and failure to because ministrative set forth in the hearsay. testimony rejected was based argument, Act. The Court holding recovery The exhibits further admissible damages were that in for in- provisions jury of under the liberal Fed.R. illegal prac- a result of as Civ.P., U.S.C.A., oth and tices is in founded and tort that tortious Department may of er Colorado decisions. Highways conduct be remedied in a common- damages. v. Intermountain Terminal law agree. action for We Company, P.2d 164 Colo. (1967); Breen, 74 Hobbs Colo. V. (1923). P. voir dired Mott was Finally, thoroughly appellants There cross-examined. contend that damages in Trial granting no abuse of discretion the admis Court erred in paid in a sum sion the exhibits. “watchmen” which remote; was too that W. C. James was improperly permitted to estimate the III. percentage efficiency job, lost on the which was an unsubstantiated conclusion argue that Trial opinion; that there was a lack of failing had erred to find Court relating substantial evidence to the Act, Colorado Labor violated the Peace findings efficiency” Court’s of “loss amended, C.R.S.1963, 80-4-1, seq., et as jobsite; and that Intermountain judg prerequisite entry as carry proof. failed to its burden We on Intermountain’s counterclaim. ment They disagree. fact contend that view Intermountain relied the Act finding The Trial Court’s counterclaim, pleading employment of the watchmen was pro must first utilize the administrative justified by facts circumstances seeking remedy of the Act visions fully supported by the record. The in lieu action. Inter- instant mileage paid same is true of the pled Act in its mountain undisputed Affirma sheriff. The record Complaint employees tive Defenses the fact twelve extent coerced intimidated to this extent: its Counterclaim they quit jobs, and that plaintiffs activities as 7. The remaining employees were nervous forth set constituted hereinabove that, apprehensive result, as a practices under the unfair labor efficiency” production was “loss of Act, Chapter Labor Peace Colorado damages expert based estimates Article 4 Colorado Revised at trial. We related to facts established amended, Statutes, and exis have held that when the cause plaintiffs dam- are liable for damages been tence of has established ages 19 thereof. under section certainty, recovery requisite will VI., 48). p. denied the amount of (R., Vol. damages to difficult determine such is Hodg- preciseness. mathematical REWIS, Temporary Annie Laurie Mrs. Rental, supra; Okada, Z A to son v. Jo- of the Estate of Administratrix Deceased, Wilson, Rewis, Ann 1969). Joseph We affirm. Mrs. Annie Sid Laurie Rewis ney Rewis, Individually, Plain tiffs-Appellants, Judge BREITENSTEIN, Circuit result). (concurring in America, UNITED STATES complaint violation of civ- asserts Defendant-Appellee. rights physical violence il reason of No. 73-2340. representa- union when occurred sought a construction tives to shut down Appeals, States Court employ project to refusal Fifth Circuit. plaintiff only union union labor. The Nov. 1974. representatives claimed and one of Rehearing Denied Jan. 1975. violation of 42 1983 and U.S.C. §§ See 506 F.2d 1386. under was asserted 28 U.S. Jurisdiction employers C. 1343. Defendant assert- expenses aed counterclaim for as a result of No actions. objection was the assertion of made to

the counterclaim en- employers.

tered thereon favor of the compulsory,

If the counterclaim was ancillary jurisdiction. federal is My opinion with the trouble gen-

possibility will as a be taken approval in civil

eral of counterclaims rights I been unable actions. have authority point.

find presented

record both the violence expenses arose out of

the additional job. down the Union’s effort to close oc- of the “transaction Satisfaction requirement

currence” F.R.Civ.P., should be determined Here, court.

first instance the trial presented problem was not de not make a

trial court and we should Implicit de-

novo determination. recognition cision of the trial court compulsory counterclaim was

and, jurisdiction hence, ancillary

present. unique particular facts

On the

case, coupled failure of the with the

plaintiffs object in the trial court counterclaim, I affirm but I would recog- question of

would leave Judge, Simpson, filed dis- Circuit generally compulsory nition counter- senting opinion. rights actions. claims civil

Case Details

Case Name: Pipeliners Local Union No. 798, Tulsa, Oklahoma, and A. Leroy Jones v. Fred H. Ellerd

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Oct 2, 1974

Citation: 503 F.2d 1193

Docket Number: 73-1880

Court Abbreviation: 10th Cir.