Newell Operating v. Int'l Union United

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1931
NEWELL OPERATING CO., et al.,
Plaintiffs-Appellants,
v.
INTERNATIONAL UNION OF UNITED AUTOMOBILE,
AEROSPACE, AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, U.A.W., and
MARCELLA COGSWELL, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 06 C 50010—Philip G. Reinhard, Judge.
____________
ARGUED FEBRUARY 11, 2008—DECIDED JULY 2, 2008
____________
Before BAUER, KANNE, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. Newell Operating Co. (“Newell”)
amended its employee welfare benefits plan to allow
administrators to charge retirees uniform monthly premi-
ums. This simple corporate action produced complex
litigation when two federal lawsuits over the validity of
Newell’s amendments were filed in quick succession. First,
Newell, its subsidiary, Newell Window Furnishings
Company, Kirsch Division (“Newell Window”), and the
2 No. 07-1931
Newell Rubbermaid Health and Welfare Program 506 (“the
Plan”) filed this suit in the Northern District of Illinois,
seeking declaratory relief against over 500 retirees of a
Michigan manufacturing plant, as well as their labor
union, the International Union of United Automobile,
Aerospace, and Agricultural Implement Workers of
America, U.A.W., AFL-CIO, and its local chapter, the
U.A.W. Local 797 (collectively, “UAW”). The complaint
requested a judgment declaring that the amendments to
the Plan did not violate the Employee Retirement In-
come Security Act (ERISA), 29 U.S.C. § 1001 et seq., or the
Labor Management Relations Act (LMRA), 29 U.S.C. § 141
et seq. See 28 U.S.C. § 2201. Second, while the declaratory-
judgment suit was pending in Illinois, the UAW and
retirees brought their own lawsuit in the Western Dis-
trict of Michigan, challenging the new premiums under
ERISA and the LMRA. The Northern District of Illinois
yielded to the action filed in the Western District of Michi-
gan by declining to exercise its jurisdiction and dis-
missing the declaratory-judgment suit. We believe that
the decision to dismiss the case was sound, and we affirm.
I. HISTORY
Newell Window’s corporate predecessor, the Kirsch
Company (“Kirsch”), manufactured drapery hardware
and custom window coverings at several plants in Sturgis,
Michigan. The UAW—which represented all production,
tool-room, and maintenance employees who performed
work at these plants—entered into collective-bargaining
agreements with Kirsch that obligated Kirsch to provide
certain health benefits for life to its employees and their
families. In 1997, Newell Window acquired Kirsch, and,
pursuant to the sale, the employees of Kirsch became
No. 07-1931 3
employees of Newell Window and members of the Plan,
an employee welfare benefits plan sponsored by Newell
and governed by ERISA. See 29 U.S.C. § 1002(1). In October
2000, Newell decided to close the Sturgis plants and
entered into a shut-down agreement with the UAW,
which agreed to waive all claims it had, or would ever
have, against Newell.
In November 2005, Newell sent a letter to the retirees of
Kirsch and Newell Window, notifying them that the
Newell Rubbermaid Inc. Benefit Plans Administrative
Committee (“the Committee”) had decided to consolidate
all of Newell’s retiree health programs, including the
Plan. The consolidation would allow a new insurance
carrier, CIGNA Healthcare, to assume the daily administra-
tion of all of Newell’s programs beginning on January 1,
2006. Around the time Newell mailed the notice to retirees,
Newell also amended the Plan to allow the Committee
to charge a uniform monthly premium once CIGNA took
over. The Committee set the premium at $40 per month.
Prior to 2006, some retirees had never been charged a
monthly premium, and many of the retirees that had paid
a premium paid less than $40 per month.
Anticipating backlash for the new charges, Newell, the
Plan, and Newell Window filed this action against the
UAW and the retirees in the Northern District of Illinois
on January 12, 2006, requesting a declaratory judgment
“that the transfer of the administration of the Plan” and
“the corresponding changes in the terms and conditions
of the benefits provided under the Plan” did not violate
either ERISA or the LMRA. Of the 474 retirees named in
the original complaint as individual defendants, only one
resided in Illinois—in Charleston, which is situated in the
Central District of Illinois. On February 15, 2006, the UAW
and four retirees filed their own lawsuit in the Western
4 No. 07-1931
District of Michigan, claiming that Newell, Newell Win-
dow, and the Plan had breached the collective-bargaining
agreements and violated ERISA and the LMRA by
charging the new $40 premium. The retirees filed their
complaint both individually and as purported representa-
tives of a class. A few weeks after filing the complaint in
Michigan, the UAW filed a motion to dismiss the Illinois
case for lack of subject-matter jurisdiction, see Fed. R. Civ.
P. 12(b)(1), or in the alternative, to transfer venue to the
Western District of Michigan, see 28 U.S.C. § 1404(a).
In response to the UAW’s motion, Newell, Newell
Window, and the Plan amended their complaint in March
2006 to add the Committee as a plaintiff. In addition to
pleading the same allegations as the initial complaint,
the amended complaint added a new count on behalf of
the Committee, which sought a declaration that it did not
violate its fiduciary duties under ERISA § 502(a)(3) by
charging the premiums. See 29 U.S.C. § 1132(a)(3)(B)(ii).
The amended complaint also requested an injunction that
would allow the Committee to condition the retirees’
participation in the Plan on their payment of the premiums
and would preclude any retiree who fails to pay from
participating in the Plan.
After the appellants amended their complaint in the
Northern District of Illinois, the UAW and individual
retirees filed new motions to either dismiss the case, or
transfer it to the Western District of Michigan. Newell,
Newell Window, the Plan, and the Committee then
moved for partial summary judgment against the UAW,
and for summary judgment against the individual defen-
dants. The district court for the Northern District of
Illinois took all of the motions under advisement and
allowed the parties to conduct discovery.
No. 07-1931 5
In March 2007, the district court for the Northern District
of Illinois granted the motions by the UAW and the
individual defendants to dismiss the case for lack of
subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1).
The district court recognized that ERISA § 502(a)(3)
provides exclusive jurisdiction over an action by a plan
fiduciary “to obtain other appropriate equitable relief” in
order to enforce the terms of ERISA or an ERISA plan. See
29 U.S.C. § 1132(a)(3)(B)(ii). But the court reasoned that
the Committee’s fiduciary action did not provide a basis for
subject-matter jurisdiction in this case because the suit was
not one to enforce the terms of ERISA or the
Plan: “Plaintiffs amended the plan to require premium
payments by retirees. Plaintiffs do not need any court
action to enforce the provisions of the plan.” The district
court relegated its analysis of jurisdiction under LMRA
§ 301, 29 U.S.C. § 185, to a footnote that stated, “[t]he
court notes that jurisdiction for a declaratory judgment
action that plaintiffs’ actions did not violate a collective
bargaining agreement appears to be proper under Sec-
tion 301 of the LMRA . . . but the court need not reach this
question either.”
The district court reasoned, “[i]f the plaintiffs are to
have their case heard here, it must be under the Declara-
tory Judgment Act,” and noted that “[e]ven where sub-
ject matter jurisdiction may be exercised over a declara-
tory judgment action, the court has discretion to decline
to hear it.” The district court exercised its discretion and
declined to hear the case because, in its view, the retirees
were the natural plaintiffs of the underlying ERISA and
LMRA disputes and “the vast majority of the retirees,
and the site of the CBAs negotiations [were] all Michigan.”
The court then denied the motions for transfer and for
partial summary judgment as moot.
6 No. 07-1931
After this case was docketed for appeal, the district
court for the Western District of Michigan ruled on a
motion by Newell, Newell Window, and the Plan to
dismiss the Michigan action or to transfer that case to the
Northern District of Illinois. The Michigan court issued an
opinion in July 2007, which denied the motion to transfer
and the motion to dismiss with respect to the individual
defendants. However, the Michigan court granted the
motion to dismiss with respect to the UAW because the
court believed that the UAW had waived its claims
against Newell by acceding to the shut-down agreement
in October 2000. After oral argument in this case, the
individual retirees moved to certify their plaintiff class
in the Western District of Michigan. Class certification in
the Michigan case is still pending.
II. ANALYSIS
Newell, Newell Window, the Plan, and the Committee
claim that the district court for the Northern District of
Illinois should not have exercised its discretion to decline
jurisdiction under the Declaratory Judgment Act, see
28 U.S.C. § 2201, because ERISA § 502(a)(3) provides
subject-matter jurisdiction over their claims for declaratory
and injunctive relief, see 29 U.S.C. § 1132(a)(3). The appel-
lants also contend that the LMRA provides subject-matter
jurisdiction over their claims. See 29 U.S.C. § 185. The
appellants argue, in the alternative, that if jurisdiction
was proper only under the Declaratory Judgment Act,
the district court abused its discretion by dismissing the
case.
We review de novo the district court’s order dismissing
the case for lack of subject-matter jurisdiction under
No. 07-1931 7
Rule 12(b)(1). Peters v. Vill. of Clifton, 498 F.3d 727, 729-30
(7th Cir. 2007). In engaging in our review, “[w]e must
accept all facts stated in the complaint as true and must
draw all reasonable inferences in the light most favorable
to the plaintiff.” Id. at 730. “Federal courts are courts of
limited jurisdiction and may only exercise jurisdiction
where it is specifically authorized by federal statute.”
Teamsters Nat. Auto. Transporters Indus. Negotiating Comm.
v. Troha, 328 F.3d 325, 327 (7th Cir. 2003). “The Declara-
tory Judgment Act empowers federal courts to give
declaratory judgments in ‘a case of actual controversy
within its jurisdiction,’ but it is not an independent grant
of jurisdiction, rather jurisdiction must be predicated on
some other statute.” Rueth v. EPA, 13 F.3d 227, 231 (7th
Cir. 1993) (quoting 28 U.S.C. § 2201(a)). We will therefore
analyze whether the district court had jurisdiction under
the predicate statutes cited in the complaint: ERISA and
the LMRA.
A. Jurisdiction under ERISA
The appellants argue that the district court erred by
stating that it could only have jurisdiction under the
Declaratory Judgment Act because jurisdiction over the
case also exists under ERISA. The appellants point to
ERISA § 502(a)(3), which provides for jurisdiction over
equitable claims by the fiduciary of an ERISA plan for
a declaration “to enforce any provisions of this sub-
chapter or the terms of the plan.” See 29 U.S.C.
§ 1132(a)(3)(B)(ii); Spitz v. Tepfer, 171 F.3d 443, 449-50
(7th Cir. 1999); Winstead v. J.C. Penney Co., 933 F.2d 576,
580 (7th Cir. 1991). The appellants contend that the Com-
mittee is the fiduciary of the Plan, and as such, the
court has jurisdiction over the Committee’s suit for a
8 No. 07-1931
declaration that its implementation of the Plan amend-
ments to charge premiums to retirees does not violate
its ERISA fiduciary duties.
The Committee is the named fiduciary of the Plan, and all
of the parties apparently concede that the Committee is the
only party to this suit that is a fiduciary of the Plan. See
Mertens v. Hewitt Assocs., 508 U.S. 248, 251 (1993) (“The
statute provides that not only the persons named
as fiduciaries by a benefit plan, but also anyone else
who exercises discretionary control or authority over the
plan’s management, administration, or assets, is an
ERISA ‘fiduciary.’ ” (internal citations omitted)). The UAW
and the retirees argue that because the Committee was
not a party to this litigation until the filing of the amended
complaint, none of the original plaintiffs in this case
“were authorized to bring their purported ERISA action.”
As such, the UAW and retirees assert that the Michigan
action was the first-filed suit with proper jurisdiction,
and by advancing this argument, they insinuate that we
need not reach the question of whether the district court
had jurisdiction under ERISA § 502(a)(3) because this
jurisdiction did not arise until after the UAW and re-
tirees commenced the suit in Michigan.
This circuit has never strictly adhered to the “first-to-file”
rule in deciding whether to retain jurisdiction or dismiss
a declaratory-judgment action. Trippe Mfg. Co. v. Am. Power
Conversion Corp., 46 F.3d 624, 629 (7th Cir. 1995); Tempco
Elec. Heater Corp. v. Omega Eng’g, 819 F.2d 746, 750 (7th Cir.
1987). Therefore, the late addition of the Committee as a
plaintiff does not foreclose the possibility that the dis-
trict court had fiduciary jurisdiction under ERISA. And,
in any case, it is very likely that the addition of the Com-
mittee as a plaintiff in the amended complaint “related
No. 07-1931 9
back” to the time of the original complaint’s filing,
making the Illinois action first in time. See Fed. R. Civ. P.
15(c); Plubell v. Merck & Co., 434 F.3d 1070, 1072 (8th
Cir. 2006) (“ ‘The relation back of amendments changing
plaintiffs is not expressly treated in revised Rule 15(c)
since the problem is generally easier. Again the chief
consideration of policy is that of the statute of limitations,
and the attitude taken in revised Rule 15(c) toward
change of defendants extends by analogy to amendments
changing plaintiffs.’ ” (quoting Fed. R. Civ. P. 15(c) 1966
advisory committee’s note)); E.R. Squibb & Sons, Inc. v.
Lloyd’s & Cos., 241 F.3d 154, 164 n.3 (2d Cir. 2001); 6A
Wright et al., Federal Practice and Procedure § 1501 (3d ed.
1998).
The appellants correctly note that the fiduciary of an
ERISA plan may sue for declaratory judgments, injunc-
tions, and restitution under ERISA § 502(a)(3)’s provi-
sion for “appropriate equitable relief.” See 29 U.S.C.
§ 1132(a)(3)(B); Spitz, 171 F.3d at 449-50 (declarations);
Harris Trust & Sav. Bank v. Provident Life & Accident Ins.
Co., 57 F.3d 608, 615 (7th Cir. 1995) (restitution and injunc-
tions). But it is clear from the language of the statute
that the federal courts do not have jurisdiction over
every suit for equitable relief by an ERISA fiduciary.
Section 502(a)(3) provides jurisdiction for fiduciary suits
“to obtain other appropriate equitable relief . . . to enforce
any provisions of this subchapter or the terms of the
plan.” 29 U.S.C. § 1132(a)(3)(B)(ii); see also Mertens, 508
U.S. at 253 (“[Section 502(a)(3)] does not, after all, au-
thorize ‘appropriate equitable relief’ at large, but only
‘appropriate equitable relief’ for the purpose of ‘redressing
any violations or . . . enforcing any provisions’ of ERISA
or an ERISA plan.” (emphasis in original)).
10 No. 07-1931
We agree with the district court that the Committee’s
declaratory-judgment action was not designed to
enforce any provisions of the Plan or ERISA. The Com-
mittee’s action cannot logically be construed as a suit to
enforce the terms of the Plan because the Plan’s sponsor,
Newell, has already amended the Plan to allow the Com-
mittee to charge premiums to the retirees, and the Com-
mittee has acted in accordance with the Plan by charging
the premiums. In fact, the Committee alleged in the
complaint that by charging premiums as a condition for
the retirees’ participation in the Plan, “the Committee
has adhered to the terms of the Plan as written and
amended.” The Committee does not need the retirees’
consent to comply with the unambiguous terms of the
Plan because it has an easy remedy—if the retirees refuse
to pay the new premiums, the Committee can stop pro-
viding them benefits under the Plan. And we do not
understand how the Committee will violate its fiduciary
duties under ERISA by following the terms of the Plan
when it has an obligation to do so under ERISA. See
29 U.S.C. § 1104(a)(1)(D).
A plaintiff cannot bring a claim within ERISA § 502(a)(3)
by advantageous and creative pleading. See Wal-Mart
Stores, Inc. Assocs’ Health & Welfare Plan v. Wells, 213
F.3d 398, 401 (7th Cir. 2000) (“[A] plaintiff cannot convert
a claim of damages for breach of contract into an equitable
claim by the facile trick of asking that the defendant be
enjoined from refusing to honor its obligation to pay
the plaintiff what the plaintiff is owed under the con-
tract and appending to that request a request for payment
of the amount owed.”). It follows that a complaint cannot
invoke ERISA § 502(a)(3) jurisdiction by the mere asser-
tion, without more, that ERISA will be violated. If the
No. 07-1931 11
Committee administers the Plan as written, it will enforce
the terms of the Plan and vindicate its fiduciary duties
under ERISA—the retirees’ dissatisfaction notwithstand-
ing. The appellants have attempted to usurp the jurisdic-
tional choice of the UAW and retirees by filing an anticipa-
tory suit for declaratory relief under ERISA § 502(a)(3)
before they could be sued in Michigan; however,
without a need to enforce the Plan or ERISA, appellants’
effort is for naught. The appellants’ suit for declaratory
and injunctive relief under ERISA § 502(a)(3) against the
UAW and retirees was unnecessary, and the district
court properly concluded that jurisdiction did not exist
under the statute. We therefore affirm the district court’s
dismissal of the counts of appellants’ complaint that
advanced claims under ERISA for lack of subject-matter
jurisdiction.
B. Jurisdiction under the LMRA
The appellants’ next argument is that the district court
erred by dismissing the case because it had jurisdiction
under LMRA § 301, which provides jurisdiction over
“[s]uits for violation of contracts between an employer
and a labor organization representing employees.” 29
U.S.C. § 185. The appellants contend that jurisdiction
existed for their suit requesting a declaration that the
Plan amendments did not violate the collective-bargaining
agreements between Kirsch and the UAW.
The appellants’ argument for jurisdiction under the
LMRA relies heavily on our decision in J.W. Peters, Inc. v.
Bridge, Structural & Reinforcing Iron Workers, for the propo-
sition that when an employer accused of violating the
terms of a collective-bargaining agreement files suit for
declaratory relief, that suit is an action “for violation of
12 No. 07-1931
contracts within the meaning of § 301.” 398 F.3d 967, 973
(7th Cir. 2005) (internal quotation omitted). Jurisdiction
under LMRA § 301 is “extremely limited” and encom-
passes only suits “ ‘filed because a contract has been
violated’ ”—it does not extend to “ ‘suits that claim a
contract is invalid.’ ” Troha, 328 F.3d at 329 (quoting Textron
Lycoming Reciprocating Engine Div. v. United Auto., Aero-
space, Agric. Implement Workers of Am., 523 U.S. 653, 656-57
(1998)). But “ ‘a declaratory judgment plaintiff accused
of violating a collective-bargaining agreement may ask a
court to declare the agreement invalid.’ ” Stevens Constr.
Corp. v. Chi. Reg’l Council of Carpenters, 464 F.3d 682, 685
(7th Cir. 2006) (quoting Textron, 523 U.S. at 658).
Although § 301 provides only limited jurisdiction,
we agree with the appellants (and the district court’s
footnote) that the appellants’ LMRA § 301 claim falls
within the statute’s jurisdictional contours. Newell
amended the Plan to charge premiums to retirees. Kirsch’s
collective-bargaining agreement with the UAW obligated
Newell to provide certain welfare benefits for the lives
of the retirees. Some retirees, and the UAW, claim that the
amendments to the Plan violated the terms of the
collective-bargaining agreements by ceasing to provide
these benefits for life to retirees who do not pay premiums.
This dispute is over whether Newell’s conduct violated
the collective-bargaining agreement, and Newell seeks
a declaration that its amendments were appropriate.
This suit involves the alleged violation of the collective-
bargaining agreement, and therefore falls within the
plain terms of LMRA § 301.
But that does not end the matter because the complaint
advanced only claims for declaratory relief under the
LMRA, and these claims are covered by the umbrella of
the Declaratory Judgment Act. See Haw. Stevedores, Inc. v.
No. 07-1931 13
HT&T Co., 363 F. Supp. 2d 1253, 1267 n.16 (D. Haw. 2005)
(“That jurisdiction may be proper under the LMRA does
not override the Court’s discretion to decline [Declaratory
Judgment Act] jurisdiction.” (citing Krey Packing Co. v.
Hamilton, 572 F.2d 1280, 1284 (8th Cir. 1978))). A district
court has “wide discretion” to decline to hear actions
that pursue only declaratory relief. North Shore Gas Co. v.
Salomon Inc., 152 F.3d 642, 647 (7th Cir. 1998); In re VMS
Secs. Litig., 103 F.3d 1317, 1327 (7th Cir. 1996); see also
Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995) (“By the
Declaratory Judgment Act, Congress sought to place a
remedial arrow in the district court’s quiver; it created an
opportunity, rather than a duty, to grant a new form
of relief to qualifying litigants. Consistent with the
nonobligatory nature of the remedy, a district court is
authorized, in the sound exercise of its discretion, to stay
or to dismiss an action seeking a declaratory judgment
before trial or after all arguments have drawn to a close.”);
Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 494 (1942).
And the district court evaluated the claims in the com-
plaint under the Declaratory Judgment Act and exercised
its “wide discretion” by declining jurisdiction.
There is some debate over what standard of review
should be used to evaluate a district court’s decision to
decline jurisdiction over a declaratory-judgment case.
Nationwide Ins. v. Zavalis, 52 F.3d 689, 693 n.3 (7th Cir.
1995) (noting a “simmering circuit split” on the issue). This
circuit has opted for a de novo standard of review. See
VMS Secs. Litig., 103 F.3d at 1327; see also Salomon Inc., 152
F.3d at 647 (reviewing decision retaining case de novo).1
1
The Supreme Court announced in Wilton v. Seven Falls Co., that
a district court’s decision to stay a Declaratory Judgment
(continued...)
14 No. 07-1931
The district court noted that “the retirees and their union
filed a class action suit approximately one month after
this declaratory-judgment action was filed. The record
reflects both sides expected the action by the ‘natural
plaintiffs.’ ” We are usually wary of a declaratory-judg-
ment action that is “ ‘aimed solely at wresting the choice
of forum from the natural plaintiff.’ ” Hyatt Int’l Corp. v.
Coco, 302 F.3d 707, 718 (7th Cir. 2002) (quoting Allendale
Mut. Ins. Co. v. Bull Data Sys., Inc., 10 F.3d 425, 431 (7th
Cir. 1993) (internal quotation marks omitted)).
And we agree with the district court that the “natural
plaintiffs” are the UAW and the retirees. It seems far
more sensible to us that the retirees adjudicate their
claims in Michigan, where the plant was located, where
the ERISA and LMRA claims may go forward in the
same litigation, and where the retirees may avail them-
selves of the benefits of a class-action lawsuit—which
will offer a much greater possibility of settlement than
the current posture of this case with its hundreds of
defendants. These pragmatic and realistic concerns coun-
sel in favor of dismissal.
Moreover, it is completely understandable that the
district court declined its jurisdiction under the Declaratory
1
(...continued)
Act action in favor of a pending state-court action is reviewed
for “abuse of discretion.” 515 U.S. at 289-90; see also Grinnell Mut.
Reinsurance Co. v. Shierk, 121 F.3d 1114, 1117 (7th Cir. 1997).
However, in several cases after Wilton, our circuit has con-
tinued to review de novo a district court’s decision to decline
jurisdiction under the Declaratory Judgment Act. See Salomon
Inc., 152 F.3d at 647; VMS Secs. Litig., 103 F.3d at 1327.
No. 07-1931 15
Judgment Act because this case raises serious questions
about the wisdom of allowing litigation to go forward
in the Northern District of Illinois. The UAW and the
retirees raised the issue before the district court by
filing the motion to transfer to the Western District of
Michigan under 28 U.S.C. § 1404(a). The retirees reside
in many states throughout the country; the majority live
in Michigan. As the district court noted, the negotia-
tions over the collective-bargaining agreement and the
Sturgis plants were in Michigan. The Plan administration
was only recently moved to Illinois, and only one retiree
defendant resides in Illinois—in the Central District of
Illinois, not in the Northern District where this case
commenced. Thus, both convenience and the “interests
of justice” practically dictate transfer to Michigan,
where the mirror image of this suit has been filed. See 28
U.S.C. § 1404(a) (“For the convenience of parties and
witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division
where it might have been brought.”). And if the district
court would have granted a motion to transfer if it had
retained the case (and it appears nearly certain that it
would have), it seems more than sensible to us that the
district court facilitated the process by exercising its
“wide discretion” to decline jurisdiction. See Salomon Inc.,
152 F.3d at 647.
Given the status of the pending suit in the Western
District of Michigan and the other considerations we
have articulated, we affirm the district court’s discre-
tionary dismissal of the LMRA count.
16 No. 07-1931
III. CONCLUSION
We AFFIRM the district court’s dismissal of the complaint.
USCA-02-C-0072—7-2-08