Opposition Brief — Buster v. Thomas, Head & Greisen Employees Trust

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No. 94-970 | DEC 28 1994

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

JACK B. BUSTER

Petitioner

Vv.

THOMAS, HEAD & GREISEN

EMPLOYEES TRUST; RONALD E.

GREISEN; HENRY P. HEAD

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RESPONDENTS BRIEF IN OPPOSITION

Ronald L. Bliss, Esq.,

Counsel of Record, and

Alfred Clayton, Jr., Esq.

BLISS & WILKENS

P.O. Box 201128

431 West 7th Avenue

Suite 202

Anchorage, AK 99520

(907) 276-2999

Lawyers for Respondents

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Se APPLICABLE STATUTES

AND REGULATIONS

te STATEMENT OF THE CASE

III. SUMMARY OF ARGUMENT

IV. ARGUMENT

A. Factual Disputes Merit

No Review by This Court

B. No Inter-circuit

Conflict Exists

¥. CONCLUSION

APPENDIX

1i

14

Al

ii

TABLE OF AUTHORITIES

Page

CASES

Beaulieu v. United States, 497 U.S.

1038 (1990) + ‘ao eae a ee oe ee 5

Berenyi v. Immigration Director,

385 U.S. 630 (1967) ae ae a ae a ean a 13

Buster v. Greisen, No. A94-0475 CV

(JKS) (D. Alaska, Dec. 14, 1994) .. . 1

Consol. Beef Indus., Inc.

v. New York Life Ins. Co.,

949 F.2d 960,

(8th Cir. 1991), cert. denied,

112 S.Ct. 1670 (1992) Ae er er ae ee ee 16

Farm Kin uppl Inc.

Edward D. Jones & Co.,

884 F.2d 288

[vom Gat, Sees «es 2 ee ee ee ee

Goodman v. Lukens Steel Co.,

482 U.S. 656 (1987) oe ae a ee > Pa

Graver Manu turing Co. v.

Linge fs... 336 U.B. 2th (eOenr « 2 « 8 12

. V, Western

Well Works, Inc., 261 U.S. 387

ei os ) er ee ee ae eee 5

McElroy v. United States,

455 U.S. 642 (1982) eee er ee a ee

iii

Rogers v. Lodge, 458 U.S. 613

ee 13

Shapiro v. United States,

335 U.S. 1 (1948) ee ewe 14

Thomas, Head & Greisen Employees

Trust v. Buster, 24 F.3d 1114

(9th Cir. 1994) ci oa ee ee ee ee ee oe Pe

STATUTES AND REGULATIONS

29 U.S.C. § 1002 (14) (A) a ee ee a

23 U.S.C.

Dommemee SMe tea) « « «+ + Ay By Bs Fe 28

29 U.S.C. § 1106 (a) (1) "ne ae ee ee oe ee ee

EE Be DS re |

ES RS eS 2 ee ee re |

ao &.F.R.

> apav-aeee; (i) (1992) ..... -4, 2, 7

SUPREME COURT RULE

Supreme Court Rule 10 ......... 4

1

I. APPLICABLE STATUTES AND REGULATIONS

This case involves 29 v.8.C. §

1002 (21) (A) (ii) and 29 C.F.R. § 2510.321(c) (i)

(1992) which set forth the factors for

determining when a person is a fiduciary with

respect to a trust established under the Em-

ployee Retirement Income Security Act (ERISA).

Petitioner Buster’s citation to z9 U.S.C.

SS 1002(14) (A), 1106(a) (1), 1109(a), and 1131

is erroneous because Buster’s questions in

this case present no controversy which makes

them applicable.’

* These sections of ERISA and Buster’s

arguments appearing at 22-24 of his petition,

with respect to parties in interest and pro-

hibited transactions do not relate to issues

in this case. Buster relies on these stat-

utes and arguments in a retaliatory action

Buster recently commenced against Ronald

Greisen and others in state court, which

action was removed to the United States Dis-

trict Court for the District of Alaska. See

Buster v. Greisen, No. A94-0475 CV (JKS) (D.

Alaska, Dec. 14, 1994) (Order Denying Remand

Attached as Appendix). Of course, this Court

should not consider the arguments while they

are pending before a United States District

Court.

2

Il. STATEMENT OF THE CASE

Petitioner Jack Buster is dissatisfied

with the trial court’s findings of fact and

the affirmation of those findings by the

United States Court of Appeals for the Ninth

Circuit. See Thomas, Head & Greisen

Employees Trust v. Buster, 24 F.3d 1114 (9th

Cir. 1994). Therefore, Buster seeks a second

appellate review of factual determinations.

District Court Judge von der Heydt for

the District of Alaska determined that Peti-

tioner Buster was a fiduciary within the

meaning of ERISA by articulating findings of

fact relating to each of the five factual

elements of fiduciary status expressed in 29

U.S.C. §1002(21) (A) (11) and 29 C.F.R. 2510.3-

21(c) (1) (1992). The trial court also found

Buster had breached his fiduciary duties by

making “untrue statements of material fact"

and "misrepresentations" in connection with

the sale of notes secured by unique parcels

of real estate to the trust. The court of

O_o

3

appeals concurred in these factual determina-

tions. These facts compel the result ob-

tained below.

III. SUMMARY OF ARGUMENT

None of the special and important rea-

sons which sometimes warrant a grant of a

writ of certiorari exist in this case. In

resolving this dispute, the trial court was

not required to construe ambiguous statutory

language or to inquire into the intentions of

Congress in enacting ERISA. The trial court

was not required to navigate uncharted legal

waters or make legal rulings which affect the

general public as opposed to the parties to

this dispute.

By affirming the decision of the trial

judge, ‘the court of appeals did not construe

Or interpret ERISA and did not make rulings

of law which conflict with courts of appeal

for other circuits as Petitioner contends.

Other courts of appeal have affirmed

ot

findings of fact made in the context of

distinct relationships that a person or en-

tity was not a fiduciary within the meaning

of ERISA. However, these decisions do not

reflect an inter-circuit conflict in the

interpretation of ERISA. Rather, they con-

firm the factual nature of the questions

presented and reflect the different results

the differing facts required. The factual

dispute presented by Buster’s petition simply

does not merit review by this Court.

IV. ARGUMENT

A. Factual Disputes Merit No Review By

This Court.

Only very special cases merit this

Court’s discretionary review on writ of cer-

tiorari. Supreme Court Rule 10. This dis-

pute is not a special case.

Early this century, this Court dismissed

a writ issued to the Ninth Circuit as

improvidently granted when it found after

2

careful review that there was no real con-

flict between the circuits, but rather dis-

tinct facts requiring different results:

[I]t is very important that we be

consistent in not granting the writ

of certiorari except in cases in-

volving principles the settlement

of which is of importance to the

public as distinguished from that

of the parties, and in cases where

there is a real and embarrassing

conflict of opinion and authority

between the circuit courts of ap-

peal. The present case certainly

comes under neither head.

Layne & Bowler Corp. v. Western Well Works,

inc... 261 U.38. 387, 393 (1923). Similarly,

this case merits no review.’

Petitioner presents this Court with five

* Even assuming arguendo this case cre-

ated a conflict among circuit courts of ap-

peal, this is not a case in which principles

were announced of importance to anyone except

the litigants in this case which resulted in

a judgment in an amount less than $150,000,

exclusive of interest and costs. In such

circumstances, denials of certiorari are

often issued in spite of an apparent conflict

between circuits. See Beaulieu _v. United

States, 497 U.S. 1038 (1990).

6

questions of fact labeled "legal conclu-

sions." The questions presented are not

questions of law.’ Rather, they articulate

the five factual elements which must be

addressed to determine whether a person has

acquired fiduciary status within the meaning

of 29 U.S.C. § 1002(21) (A) by rendering in-

vestment advice for a fee or other compensa-

tion.*

? In his brief as appellant to the

United States Court of Appeals for the Ninth

Circuit, Buster presented these same ques-

tions to the court as questions of fact and

argued in conclusion that the "district

court’s finding that Northern Financial and

its partners became fiduciaries to the trust

by rendering investment advice for a fee as a

primary basis for investment decisions by the

trustees is clearly erroneous." Brief of

Jack B. Buster, Appellant at 48, Thomas, Head

& Greisen v. Buster, 24 F.3d 1114 (9th Cir.

1994) (Ne. 92-36732). Buster’s attempt to

invoke a new standard of review at this stage

in the proceedings is disingenuous. As dis-

cussed more fully below, the decisions upon

which Petitioner relies affirm that’ the

questions Petitioner presents are questions

of fact.

* In the proceeding below, the courts

considered the facts in light of the follow-

ing statutory and regulatory language:

29 U.S.C. 1002(21) (A) provides in part:

29

(21) (A) Except as otherwise pro-

vided in subparagraph (B), a person

is a fiduciary with respect to a

plan to the extent .. . (ii) he

renders investment advice for a fee

or other compensation, direct or

indirect, with respect to any mon-

eys or other property of such plan,

or has any authority or responsi-

bility to do so

-F.R. 2510.3-21(c) (1) (1992) provides:

(c) Investment advice. (1) A

person shall be deemed to be ren-

dering "investment advice" to an

employee benefit plan, within the

meaning of [29 wae.t., §

1002 (21) (A) (ii)] only if:

(i) Such person renders advice

to the plan as to the value of -

securities or other property, or

makes recommendation as to. the

advisability of investing in, pur-

chasing, or selling securities or

other property; and

(ii) Such person either di-

rectly or indirectly (e.g., through

or together with any affiliate) --

(A) Has discretionary author-

ity or control, whether or not

pursuant to agreement, arrangement

or understanding, with respe2ct to

8

All five questions presented to this

Court were resolved in July 1992 by District

Court Judge James A. von der Heydt after

careful consideration of evidence presented

at trial] .*

purchasing or selling securities or

other property for the plan; or

(B) Renders any advice

described in paragraph (c) (1) (i) of

this section on a regular basis to

the plan pursuant to a mutual

agreement, arrangement or _ under-

standing, written or otherwise,

between such person and the plan

that such services will serve

as a primary basis for investment

decisions with respect to plan

assets, and that such person will

render individualized investment

advice to the plan based on the

particular needs of the plan re-

garding such matters as, among

other things, investment policies

or strategy, overall portfolio

composition, or diversification of

plan investments.

: The court of appeals affirmed each

of the findings of fact relating to Buster’s

fiduciary status concluding that many were |

"well supported by the evidence." Buster, 24

F.3d at 1120. The findings were as follows: |

FE

Findi iduciar Status of

Defendants.

: © Defendants rendered in-

vestment advice to the Trust as to

the value of the Falkenstein, Kern,

Bergin and Smith notes by virtue of

their having presented yield

sheets, mortgage analyses, purchase

prices and other information to

trustee Ronald E. Greisen.

2. Defendants made recommen-

dations as to the advisability of

the Trust investing in the Falken-

stein, Kern, Bergin and Smith notes

by virtue of defendants’ investiga-

tion into and screening of those

notes by applying the investment

criteria previously articulated to

them by trustee Ronald E. Greisen,

and by subsequently presenting

those notes to the Trust with a

recommendation to purchase them.

: Defendants rendered in-

vestment advice to the Trust on a

regular basis as evidenced by the

Trust’s purchase of 61 notes over a

nine and one-half year period.

4. Defendants rendered in-

vestment advice to the Trust pursu-

ant to a mutual understanding that

Defendants’ advice would serve as a

primary basis for the investment

decisions of the Trust, and that

defendants’ advice would be indi-

vidualized investment advice based

on the particular needs of the

Thomas, Head & Greisen Employee

10

Trust, concerning such matters as

the Trust’s investment policies or

strategies, overall portfolio com-

position or diversification of plan

assets. Defendants’ advice served

aS a primary basis for the Trust’s

investment decisions. In the

course of Northern Financial’s

dealings with the Trust, the Trust

invested approximately 40% of its

total assets in investments recom-

mended by defendants. The advice

rendered by defendants was individ-

ualized to the Trust based on its

particularized needs. Mr. Greisen

personally met with the defendants

and discussed the need for diversi-

fication of plan assets, both geo-

graphically and by asset type, as

well as the overall investment

strategy of the Trust. Mr. Greisen

articulated parameters for Trust

investments, and defendants were

aware of what types of investments

were suitable for the Trust. De-

fendants used the Trust’s invest-

ment parameters to investigate and

screen such notes before they were

recommended to the Trust.

Defendants understood that the

trustees were relying on them to

investigate and screen such notes,

and to present only suitable oppor-

tunities to the Trust.

Defendants’ compensation a-

mounted to thousands of dollars on

each of the notes in question; it

is unreasonable to assume that Mr.

Greisen and Mr. Head would agree to

pe |

compensation in that amount unless

they understood that defendants

were providing a substantial ser-

vice to the Trust in return.

$. Mr. Buster was also a

fiduciary to plaintiffs by virtue

of his being a general partner, and

they being limited partners, in

Kavik Mortgage Investors. The

court concludes that any reasonable

person, when dealing with another

who serves two different masters,

only one of which is owed a fidu-

Ciary duty, would not proceed be-

fore ascertaining which entity he

was purporting to be representing.

- Defendants received com-

pensation for rendering investment

advice to the Trust. The price of

the notes offered to the Trust were

fixed by defendants to yield a 20%

return to the Trust on its invested

funds. ,

7. In late April or early May

of 1986, defendant Jack B. Buster

was aware that the Falkenstein,

Kern and Smith notes had been sold

to the Trust by Northern Financial.

Mr. Buster considered these notes

unsuitable investments for the -

Trust. In a conversation with Mr.

Greisen, Mr. Buster expressed his

surprise that the Trust had pur-

chased the notes in question.

At that time, Northern Finan-

cial had a fiduciary duty to advise

the Trust that the notes in ques-

12

The court of appeals considered Buster’s

claim that each of the findings was erroneous

and affirmed each finding. Buster, 24 F.3d

at 1120.

\

\

Facts established by a district court

and concurred in by a court of appeal merit

no review by the Supreme Court.

A court of law such as this court

is, rather than a court for correc-

tion of errors in fact finding,

cannot undertake to review concur-

rent findings of facts by two

courts below in the absence of a

very obvious and exceptional show-

ing of error.

Graver Manufacturing Co. v. Linde Co., 336

U.S. 271, 274-275 (1949) (citing cases).

In Goodman v. Lukens Steel Co., 482 U.S.

656, 665 (1987), this Court reviewed issues

relating to the discriminatory intent

required to prove a civil rights claim and

tion were not suitable investments

for the Trust, and the reasons for

such a conclusion.

See Petition for Writ of Certiorari at A55-

A58.

13

upheld findings that the parties had discrim-

inated on racial grounds in violation of

statute. This Court noted that:

The court of appeals did not set

aside any of the district court’s

findings of fact that are relevant

to this case. That is the way the

case comes to us, an both courts

below having agreed on the facts,

we are not inclined to examine the

record for ourselves absent some

extraordinary reason for undertak-

ing this task.

Id. at 665. See also Rogers v. Lodge, 458

U.S. 613, 623 (1982); Berenyi_ v. Immigration

Director, 385 U.S. 630, 635 (1967).

The resolution of the dispute in Good-

man, involving the trial court’s findings of

historical fact and application of statute to

those facts, reflects the same process which

occurred in the present case. Buster’s

petition invites this Court to undertake the

same review of the record and reconsideration

of the evidence the Court declined in Good-

man. The findings of fact in this case,

noted above, made by District Court Judge von

14

der Heydt, stand unassailed as affirmed by

the court of appeals. Buster has presented

this court with no reason for reviewing or

disturbing these facts.°

B. No Inter-circuit Conflict Exists.

Petitioner contends that the decision

below conflicts with decisions of other

United States Courts of Appeal. No conflict

exists.

Farm King Supply, Inc. v. Edward D.

Jones & Co., 884 F.2d 288 (7th Cir. 1989),

. Occasionally, without elaboration,

Buster argues that affirmation of the find-

ings of the trial court required the court of

appeals to "construe ERISA." (See Petition

at 26, 32) Buster does not develop this

argument because he cannot. Neither the

trial court nor the court of appeals were

called upon to interpret ambiguous statutory

or regulatory language to resolve this dis-

pute. Buster’s arguments present none of the

analysis of statutory language which mark

cases involving statutory construction.

Compare, e€.g., McElroy v. United States, 455

U.S. 642, 643 (1982); Shapiro v. United

States, 335 U.S. 1, 4 (1948). Buster’s argu-

ment rests entirely on comparisons of this

decision with other court decisions, which

decisions the Ninth Circuit appropriately

distinguished on their facts.

15

upon which Petitioner primarily relies,

demonstrates the factual nature of the pres-

ent dispute and supports the conclusion no

further review of this case is warranted.

In Farm King, trustees of an ERISA trust

argued that a brokerage firm was a fiduciary

because it rendered individualized investment

advice pursuant to a mutual agreement and

received compensation therefore. 884 F.2d at

293. Analyzing this argument, the Seventh

Circuit applied the definition of a fiduciary

expressed in 29 U.S.C. § 1002(21) (A) (ii) and

the "unassailed regulations further explain-

ing when a person is deemed to be providing

investment advice." Id. at 291. The court

made no further analysis of the controlling

statutory and regulatory language. Recogniz-

ing the fact intensive nature of the dispute,

the court of appeals affirmed the decision of

the trial court applying a clearly erroneous

standard of review.

As in this case, the appellants in Farm

eS

16

King argued that the findings of the district

judge with respect to the elements of fidu-

Ciliary status were mixed findings of fact and

law which warranted de novo review. Id. at

293. The court rejected this argument as

follows:

(W]hether the parties agreed that

Jones would provide investment

advice which would be the primary

basis for investments, turns on the

evidence heard at trial. Did the

parties have such an agreement?

The issue here is comparable to the

corresponding "meeting of the

minds" component of contract cases.

Whether a meeting of the minds

exists is an issue for the trier of

fact. Consequently, the finding in

question made by the district judge

is solely a factual matter and thus

reversible only upon a showing that

the determination was clearly

erroneous.

Id. at 293 n.6 (citations omitted).

The trial court determined that there

was no mutual understanding as required by

ERISA. Because this determination was

supported by the record, the court of appeals

affirmed the decision. Id. at 293-94. See

also Consol. Beef Indus., Inc. v. New York

Ne

17

Life Ins. Co., 949 F.2d 960, 965 (8th Cir.

1991), cert. denied, 112 S.Ct. 1670 (1992)

(affirming trial court’s factual determina-

tion whether entity was a fiduciary within

the meaning of ERISA).

In the same way, the Ninth Circuit in

this case appropriately concurred in the

trial court’s findings of fact which con-

trolled the results in this case. As is

Clear from the findings in this case of

District Judge von der Heydt noted above, the

relationship between Jack Buster and the

Thomas, Head & Greisen Employees Trust was

different from the relationships analyzed in

Farm King and the other decisions relied upon

by Buster. The distinct facts regarding

these different relationships simply call for

different results.

V._ CONCLUSION

Petitioner Jack Buster argued before the

court of appeals that the facts found in this

18

case were clearly erroneous. Buster did not

prevail. Buster now brings the same argument

to this court attempting to disguise ques-

tions of fact as questions of law. Buster’s

argument that a conflict exists between

courts of appeal lacks merit because the

decisions merely reflect the different re-

sults required by distinct facts.

The findings of fact made in this case

compel the result obtained below. Petitioner

has presented this Court with nothing which

/ /

a, i a a. i i i a ae a

—— — — Se “ Me a “ Ma “he

ee i i i a a a a

19

merits further review. Mr. Buster’s petition

should be denied.

TRO

RESPECTFULLY SUBMITTED this 21 day of

December, 1994.

Ronald L. Bliss,

Counsel of Record

wy. Cpe Chins) NM

Alfred Career. J

P.O. Box 201128

431 W. 7th Ave., Ste 202

Anchorage, AK 99520

(907) 276-2999

ons aed ee

Al

MINUTES OF THE UNITED STATES DISTRICT COURT

DISTRICT OF ALASKA

Jack Buster v. Ronald Greisen, et al.

Case No. A94-0475 CV (JKS)

By: THE HONORABLE JAMES K. SINGLETON

Deputy Clerk: Marvel Hansbraugh,

Case Management: 271-5575*

PROCEEDINGS: ORDER FROM CHAMBERS

Thomas, Head & Greisen Employees Trust

(the "Trust") sued Jack Buster in Federal

Court pursuant to the Employee Retirement In-

come Security Act of 1974 (ERISA) 29 U.S.C. §

1001, et seq. This Court had federal question

jurisdiction. 28 U.S.C. § 1331. The Trust

argued that Buster, a fiduciary under the Act,

had fraudulently induced the Trust to acquire

certain assets. See 29 U.S.C. § 1109(a)

(making fiduciaries personally liable for in-

ter alia fraud). The Act, which the Supreme

Court has described as a, "comprehensive and

reticulated statute", see Nachman or.

A2

PBGC, 446 U.S. 359, 361 (1980), with, "six

carefully integrated civil enforcement

provisions", Massachusetts Mut. Life Ins. Co.

v. Russell, 473 U.S. 134, 146 (1985), was in-

tended to provide a comprehensive system of

civil recovery for those defrauded . by

fiduciaries. See, e.g., Mertens v. Hewitt

Associates, 113 S.Ct. 2063 (1993). Judge Von

Der Heydt of this Court heard evidence and

found in favor of the Trust, concluding that

Buster had defrauded it in numerous particu-

lars. He awarded judgment against Buster in

the sum of $142,745.71. This judgment was

affirmed on appeal. Thomas, Head & Greisen

Employees Trust v. Buster, 24 F.3rd 1114 (9th

Cir. 1994).

Thereafter Buster commenced this action

in State Court against three of the plaintiffs

in the federal court case: Ronald E. Greisen,

Henry P. Head, and vr L. Ratchye. In this

action Buster argued that Greisen and the oth-

ers failed to disclose to him that his actions

A3

made him a fiduciary under federal law who

could be used in federal court for fraud.

Failure to advise him regarding his duties

under federal law, Buster continues, lead to

his being successfully sued in federal court

and having a judgment rendered against him.

He seeks recovery for the costs and attorney’s

fees he incurred in federal court, the amount.

of the judgment against him, plus damages for

injuries to his reputation from being branded

a crook in federal court. He asks for

$1,000,000.

Greisen and the others removed this case

to federal court. 28 U.S.C. § 1441(b).

Buster seeks a remand. Docket No. 7. He ar-

gues that his action is purely one of state

law founded on Restatement (Second) Torts §

551 (1977). See Turnbull v. LaRose, 702 P.2d

1331 (Alaska 1985). In context, it appears

that Buster is really suing for a variation of

abuse or process; he is being dragged into

court and required to defend and incur costs

A4

and the damage to his reputation from losing

the lawsuit which constitutes his damages.

Generally, this Court would not have removal

jurisdiction over an action for abuse of

process or malicious prosecution even if the

process allegedly abused was the process of

this Court. See, e.g., Tarkowski v. County of

Lake, 775 F.2d 173 (7th Cir. 1985); Fisher v.

White, 715 F. Supp. 37 (E.D. N.Y. 1989); Owens

v. First City Nat. Bank of Beaumont, 714 F.

Supp. 227 (E.D. Tex. 1989); Voors v. Nat.

Women’s Health Organization, Inc., 611 F.

Supp. 203 D.C. Ind. 1985). An exception to

this rule exists where the original plaintiff

sued on a cause of action expressly granted by

Congress and the state court suit attacks that

action. See, e.g., Nationwide Charter and

onv n Vv. , 254 F. Supp. 85

(D. Mass. 1966). In such a case there is a

real risk that a litigant will use state

process as a means of retaliation against the

bringing of an action expressly authorized by

A5

Congress. To permit such an action to proceed

in state court would seriously jeopardize this

Court’s power to grant relief to litigants

pursuing ERISA remedies under federal law.

Consequently, federal common law provides a

defendant in such a suit a federal remedy in

order to protect and vindicate his

Congressionally granted statutory rights and

this Court has jurisdiction under 28 U.S.C. §

p & kp

In order to prevail, Buster must convince

a court that the Trustees of an ERISA trust

are under an obligation to inform potential

swindlers of their obligations under federal

law or suffer the cost and expense of state

court litigation where the trustee success-

fully sues the swindler in federal court.’

Such potential law suits could not help but

, My decision in this case makes it

unnecessary to determine whether Buster’s

current claims were compulsory counterclaims

in the Trust’s federal court action against

him. See Fed. R. Civ. P. 13(a).

A6é

chill reliance on the remedies established by

Congress in 29 U.S.C. § 1132(a) (2). In sucha

case, the federal common law should provide a

remedy to protect ERISA from retaliatory

lawsuits. Under the circumstances, 29 U.S.C.

§ 185(a) provides this court with jurisdic-

tion. See, e.g., Metropolitan Life Ins. Co.

v. Taylor, 481 U.S. 58 (1987). Alternatively,

this Court would have jurisdiction under 28

U.S.C. § 1331, since the common law would pro-

vide a federal remedy for retaliatory lawsuits

of this kind brought in state court.’

IT IS THEREFORE ORDERED:

The motion for Remand and for Costs at

Docket No. 7 is DENIED.

* The close nexus between the chilling

effect permitting lawsuits like Buster’s to

proceed in state court would have on the

remedies set out in 29 U.S.C. § 1132 serves

to distinguish this case from the general

rule that there is no federal law regarding

abuse of process. See, e.g., Wheeldin v.

Wheeler, 373 U.S. 647, 652 (1963).

A7

Entered at the direction; of the Honorable

James K. Singleton, United States District

Court Judge, by Ardel Burritt, secretary to

Judge Singleton.

DATE: December 14, 1994

SECRETARY’S INITIALS: ab

* ALL INQUIRIES REGARDING THE SCHEDULING OR

CALENDARING OF THIS CASE SHOULD BE DIRECTED TO

THE ABOVE-INDICATED CASE MANAGER.

C.F. OO. 2