NEW YORK STATE LABORERS POLITICAL ACTION COMMITTEE, SAMUEL M. FRESINA, CHAIRMAN, Plaintiffs, v. MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK, 32 WEST 18TH STREET, NEW YORK, NEW YORK 10016, Defendant.

97-CV-1731 (NPM)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

1998 U.S. Dist. LEXIS 3839; 158 L.R.R.M. 2080


March 23, 1998, Decided  
March 24, 1998, Filed

DISPOSITION:  [*1]  Plaintiff PAC's motion to remand DENIED and defendant Union's motion to transfer action to Southern District of New York GRANTED.

CORE TERMS: consent decree, monitor, removal, collective bargaining agreement, Writs Act, motion to transfer, authorization, venue, wages, preempted, dependant, lawsuit, deduct, card, convenience, deducted, reside, subject matter jurisdiction, exclusive jurisdiction, organized crime, frustrate, federal question, original jurisdiction, federal jurisdiction, authorize, breach of contract, judicial economy, rights granted, transferred, non-party

COUNSEL: For Plaintiffs: JAMES E. LONG, ESQ., Albany, New York.
 
For Defendant: MYRON D. RUMELD, ESQ., JOHN E. DALY, ESQ., PROSKAUER ROSE LLP, New York, New York.
 
For Defendant: BETH A. BOURASSA, ESQ., WHITEMAN OSTERMAN & HANNA, Albany, New York.

JUDGES: Neal P. McCurn, Senior United States District Judge.

OPINIONBY: Neal P. McCurn

OPINION: MEMORANDUM-DECISION & ORDER

Before the court is a motion to remand by plaintiff New York State Laborers Political Action Committee and its chairman, Samuel M. Fresina ("NYLPAC" or the "PAC"). The motion is opposed by defendant Mason Tenders District Council of Greater New York ("MTDC" or the "Union"). In addition, there is before the court a motion by the Union to transfer venue from the Northern District of New York to the Southern District of New York. The Union's transfer motion is opposed by the plaintiff PAC.

FACTS

The PAC filed this lawsuit in October 1997 in New York State Supreme Court, Albany County, seeking to collect Union members' employee contributions. The contribution funds which are the subject of  [*2]  this lawsuit were collected by the Union for the benefit of the PAC. The employers would remit the contribution funds collected from the employees to the Union which would then ordinarily turn over the funds to the PAC. According to the PAC, the Union merely acts as a stakeholder or depository and, as such, is a "holder in due course" of the contributed funds until they are remitted to the PAC. As of January 1, 1997 the Union has refused to turn over the employee contributions to the PAC and the PAC alleges that this refusal by the Union constitutes a breach of contract under state law. Thus, the PAC commenced this action in state court for breach of contract.

On November 23, 1997, the Union filed a notice of removal to the United States District Court for the Northern District of New York. The Union removed the action to federal court asserting jurisdiction on two grounds. The first ground is that the plaintiff PAC's claim is preempted by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (the "LMRA"), because the payments allegedly due are deducted from the payroll of the Union's members and remitted to the Union pursuant to provisions of the applicable collective bargaining  [*3]  agreements. The second ground is that the funds allegedly owed to the PAC are being restrained by a court-appointed monitor (the "Monitor") pursuant to a consent decree entered in the United States District Court for the Southern District of New York (Sweet, S.J.) (the "Consent Decree"). Pursuant to the Consent Decree, the Monitor is charged with the responsibility of rooting out corruption and organized crime ties that have plagued the Union for many years. The Consent Decree establishes Judge Sweet's exclusive jurisdiction over all challenges to the actions of the Monitor.

The defendant Union asserts that the obligations to make the payments described in the complaint arise from the collective bargaining agreement entered into by the Union and various employers (the "CBA"). The CBA provides that the employers agreed to deduct $ 0.05 for each hour worked "from the wages of those employees who have voluntarily authorized such contributions on the forms provided for that purpose by the [Union]." CBA, Article VI, Section 8. Pursuant to the CBA, union members who agreed to contribute to the PAC signed authorization cards which authorized the deduction of the $ 0.05 per hour worked.  [*4]  While the CBA does not expressly provide that the employer will forward the withheld funds to the Union rather than the PAC directly, the Union contends that this is the parties' intention.

Under the usual situation, the Union would turn the funds over to the PAC after receiving the contributions from employers. However, in this case, the Union was directed by the Monitor to withhold the PAC contributions because of alleged improprieties within the PAC.

The Monitor derives his authority to restrain the payments from the Consent Decree. The Consent Decree was entered into as a result of a civil action brought by the United States in 1994 claiming various violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1964, and the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., by numerous Union officials. In order to end the Union's involvement in the alleged organized crime, the Consent Decree afforded the Monitor the authority to review all actions, expenditures and investments of the Union and to take any and all actions that are consistent with his responsibilities under, and effectuate the purposes of, the Consent Decree. All  [*5]  of the decisions of the Monitor are final and binding, subject only to a limited review by Judge Sweet.

In connection with this case, the Monitor restrained the contributions because of alleged improprieties by a Union official and an administrator of the PAC, Salvatore Lanza ("Lanza"). Pursuant to the Consent Decree, the Monitor expelled Lanza from the Union for alleged racketeering, knowing association with members of La Cosa Nostra, and other violations of the Consent Decree. In addition, the PAC was explicitly instructed not to pay Lanza a severance upon his removal from the PAC. Despite this instruction, Lanza was allegedly paid a severance in excess of $ 200,000. Thus, because of the Monitor's concern that the PAC monies may have been misappropriated to a person found to have associations with organized crime, and pursuant to his authority under the Consent Decree, the Monitor directed that the Union refrain from making further payments to the PAC without the Monitor's authorization. In accordance with the Monitor's instructions, these monies are being held in escrow until there is a full investigation into the activities of the PAC. As of the date of this motion, a disciplinary  [*6]  action has been commenced against Lanza and other administrative PAC members for, inter alia, misappropriating PAC funds in connection with the alleged severance payment to Lanza.

After this action was commenced and the matter removed to this federal court, the defendant Union filed an application for an order from Judge Sweet under the All Writs Act requiring that this lawsuit be transferred to the Southern District of New York for adjudication. In that motion, the Union contends that the Southern District should exercise exclusive jurisdiction over the dispute because the catalyst for the lawsuit was the Monitor's order, any resolution of the dispute made without full familiarity with the Consent Decree could serve to undermine the Consent Decree's purpose as well as the authority of the Monitor, adjudication in another court could lead to inconsistent interpretations of the Consent Decree, judicial economy is fostered by adjudicating the dispute before the court fully familiar with the Consent Decree, and the public policy of eliminating organized crime is served by having the dispute adjudicated by a court familiar with the Consent Decree. At oral argument of the Union's motion  [*7]  on December 31, 1997, Judge Sweet stated that he believed he had the authority to stay the state court action, but that he was uncertain of his authority to direct the transfer of the proceeding to the Southern District. Judge Sweet's decision on the All Writs Act motion is pending.

The plaintiff PAC asserts that it is entitled to remand because its action is one for breach of contract and is governed by New York State law. The PAC asserts that its "claim is a mere collection claim arising as a result of a breach of individual contracts created between an employer and its employees for the remittal of certain monies to the [PAC] and wrongfully withheld by [the Union]." As will be set forth hereinafter, this court finds that the action was properly removed to federal court. First, the PAC's action is substantially dependant upon an interpretation of the CBA thereby necessitating preemption. Second, the All Writs Act provides an alternative basis for upholding the removal as proper.

In addition, the PAC opposes the Union's motion to transfer first upon the ground that this action could not have been brought in the Southern District of New York because there is no federal question  [*8]  present inasmuch as the claim is not preempted by section 301 of the LMRA. This argument is essentially a reargument of the PAC's position on its motion for remand. Second, the PAC contends that the defendant Union completely ignored the fact that the PAC also maintains offices in the Northern District in Albany, New York. Therefore, the PAC asserts that the Union fails to meet its burden of establishing that transfer of venue to the Southern District is proper.

The court heard argument on the motions on March 20, 1998 and reserved decision. After carefully reviewing all of the parties' submissions, the applicable law, and after hearing counsels' arguments, the court denies the plaintiff PAC's motion to remand and grants defendant Union's motion to transfer this action to the Southern District of New York for the reasons set forth.

DISCUSSION

I. MOTION TO REMAND

The court finds that defendant's removal of this case to the Northern District of New York was proper because this action is based upon rights granted the PAC pursuant to the CBA and the adjudication of this matter is substantially dependant upon an analysis of that agreement. Thus, plaintiff Union's complaint  [*9]  is preempted by section 301 of the LMRA.

Section 1441(a) of Title 28 of the United States Code provides that an action may be removed where the district court would have original jurisdiction. District courts have original jurisdiction over actions presenting federal questions, which include actions arising under the laws of the United States. See 28 U.S.C. § 1331.

Section 301 of the LMRA grants district courts jurisdiction over suits involving a breach of a collective bargaining agreement. Section 301 governs all "claims founded directly on rights created by collective bargaining agreements or claims substantially dependant on an analysis of a collective bargaining agreement." See Caterpillar, Inc. v. Williams, 482 U.S. 386, 394, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987).

In the instant case, any rights that the plaintiff PAC has to the funds collected from Union member employees arose from the terms of the CBA. While the PAC is not a party to the CBA, it derives its rights pursuant to the CBA as a third party beneficiary. See Hess v. B & B Plastics Div. of Metal Cladding, Inc., 862 F. Supp. 31 (W.D.N.Y. 1994); Morris v. Local 819, IBT, 1995 U.S. Dist. LEXIS 6390, No. 94 Civ. 8010, 1995 WL  [*10]  293623 (S.D.N.Y. May 11, 1995) (finding that, if plaintiff is a third party beneficiary of a collective bargaining agreement, "an analysis of plaintiff's rights would obviously require interpretation of the collective bargaining agreement, thereby preempting plaintiff's state law characterization of his claim"). The CBA, Article VI, Section 8 provides that "the Employer agrees to deduct and transmit to the New York Laborers' Political Action Committee ("NYLPAC") $ 0.05 for each hour worked from the wages of those employees who have voluntarily authorized such contributions . . ." CBA, Article VI, Section 8. Because the PAC derives its rights pursuant to the CBA, its claim is substantially dependant on an analysis of the CBA. See Caterpillar, 482 U.S. at 394; cf. Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 407, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988) (a claim whose resolution requires an interpretation of a collective bargaining agreement is dependant upon the agreement and is thus preempted by the LMRA).

While the CBA does not set forth in explicit terms the Union's rights and responsibilities in connection with the collected contributions, the presence of  [*11]  certain provisions clearly indicate that the Union is given responsibilities in connection with the funds. For example, the CBA grants the Union authority to enforce the provision which grants the PAC its rights under the CBA. In Article VI, Section 15(g), the CBA sets forth that "the Union may also withdraw Mason Tenders to enforce the requirement of the Agreement that Union dues and NYLPAC contributions be deducted from the wages of Mason Tenders or to enforce payment to the Union of Union dues or NYLPAC contributions already deducted from the Wages of the Mason Tenders." CBA, Article VI, Section 15(g). In Article VI, Section 15(h), the CBA provides:

"if Mason Tenders are withdrawn from any job . . . to enforce the requirement of this Agreement that union dues or NYLPAC contributions be deducted from the wages of Mason Tenders or to enforce payment to the Union of Union dues or NYLPAC contributions already deducted, the Mason Tenders who are effected by such stoppage of work shall be paid for lost time not exceeding fourteen hours . . ."
 
CBA, Article VI, Section 15(h). In any event, the court here need not determine the extent and nature of the Unions obligations  [*12]  and the PAC's rights in connection with the collected funds, it need only make the finding that such determinations would be dependant upon, or involve an interpretation of, the CBA.

Plaintiff's assertion that its claim does not rest on the CBA but rather is a mere collection action arising from individual contracts in the form of authorization cards is misplaced inasmuch as the authorization cards do not create the PAC's rights to the contributions. The authorization cards merely authorize the deduction from a union employee's wages pursuant to rights granted by the CBA. This is evident from a review of the authorization cards which set forth, in pertinent part, that the union employee authorizes each employer who is a party to the CBA to deduct a specified amount from the union employee's paycheck. See Notice of Removal, dated November 25, 1997, exhibit "A" (complaint with authorization card attached). Thus, these authorization cards merely grant authority to deduct funds for a specific union employee pursuant to rights granted in the CBA, and are not themselves independent contracts. Further, the CBA itself specifically references that the employer agrees to deduct the PAC's  [*13]  contribution "from the wages of those employees who have voluntarily authorized such contributions on the forms provided for that purpose by the Union." See CBA Art. VI, sec. 8. As defendant Union points out, plaintiff acknowledges that the collection of the contribution and the authorization to deduct the contribution are "pursuant to a collective bargaining agreement." See plaintiff PAC's complaint at P 4; see also Sherwin v. Indianapolis Colts, Inc., 752 F. Supp. 1172, 1177 (N.D.N.Y. 1990) (McCurn, C.J.) (in finding plaintiff's tort claim preempted by Section 301, the court noted that while defendant treated the collective bargaining agreement and the standard player agreement independently, "for the purposes of this analysis they may be considered together" because the standard player agreement "is effectively incorporated by reference" into the collective bargaining agreement).

Plaintiff also asserts that because no violation of the CBA is alleged in the complaint, there is no federal question present on the face of the complaint and, therefore, removal was improper. This fact is of little assistance to the PAC. As a general matter, the presence or absence of federal  [*14]  jurisdiction is based upon the "well-pleaded complaint rule," which provides that federal jurisdiction only exists where a federal question is presented on the face of the complaint. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987). However, where an area of law is so completely preempted by federal law, the "complete preemption doctrine" provides that an action may be removed regardless of whether a federal question is present on the face of the complaint. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S. Ct. 1542, 1546, 95 L. Ed. 2d 55 (1987). Claims arising under the LMRA are claims that require analysis pursuant to the "complete preemption doctrine" and thus, the plaintiff's complaint in the instant action does not survive removal by not expressly invoking rights set forth in the CBA. See, e.g., id.

Accordingly, for the reasons set forth, the court determines that it would have had original jurisdiction had the suit been brought in federal court initially, and thus, the Union's removal was proper.

As an alternative ground for finding removal proper, the court concludes that the All Writs Act, 28  [*15]  U.S.C. § 1651, provides an independent basis for finding that the PAC's complaint is subject to federal jurisdiction. The All Writs Act provides, in pertinent part, that a district court "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). Thus, the Act "authorizes a federal court in exceptional circumstances to issue such orders to persons 'who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, and encompasses even those who have not taken any affirmative action to hinder justice.'" Benjamin v. Malcolm, 803 F.2d 46, 53 (2d Cir. 1986) (quoting United States v. New York Telephone Co., 434 U.S. 159, 174, 98 S. Ct. 364, 373, 54 L. Ed. 2d 376 (1977) (citations omitted)). The Supreme Court has reiterated that federal courts have the power "to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained."  [*16]  New York Telephone Co., 434 U.S. at 172, 98 S. Ct. at 372.

In the instant case, the Consent Decree granted Judge Sweet of the Southern District exclusive jurisdiction over "any action or litigation commenced or Claims . . . brought by any party or non-party that in any way challenges, impedes or otherwise relates to the acts, omissions or authority of the Court-Appointed Officers." Thus, the Consent Decree grants Judge Sweet exclusive jurisdiction over this action because it challenges the Monitor's authority to restrain the Union's payment to the PAC.

The PAC argues in its memorandum that it "was not a party to the Decree nor do they wish to define the boundaries of the Monitor pursuant to the Decree." That the PAC was not a party to the Consent Decree does not affect Judge Sweet's authority, especially where the PAC is now in a position to frustrate the implementation of the Consent Decree. See Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855 (2d Cir. 1988) (in rejecting a similar argument, Second Circuit set forth "The fact that petitioners were not parties to--and in their words 'had absolutely no connection with'--the underlying discrimination lawsuit is of little  [*17]  consequence. The [petitioners] are in a position now--whether willingly or not--to frustrate implementation of the Consent Decree. We believe this is just the sort of extraordinary circumstance envisioned by the All Writs Act."); cf. In re Baldwin-United Corp., 770 F.2d 328, 337 (2d Cir. 1985) (using All Writs Act to enjoin non-parties from commencing actions in state court where such proceedings would "threaten[ ] to frustrate proceedings in a federal action").

Accordingly, the plaintiff PAC's motion to remand the case to state court is denied because the court concludes that this matter was properly removed to federal court.

II. MOTION TO TRANSFER

Having decided that the Union's removal of this case was proper, the court now turns to the Union's motion to transfer venue to the Southern District.

A motion to transfer venue from one federal district court to another is governed by 28 U.S.C. § 1404(a). This section provides that "a district court may transfer any civil action to any other district or division where it might have been brought" for the convenience of parties and witnesses in the interest of justice. See 28 U.S.C. § 1404(a); see generally Filmline  [*18]  Prods. v. United Artists, 865 F.2d 513, 520 (2d Cir. 1989).

The court's inquiry on a motion to transfer is two part. First, the court must inquire whether the pending action is one that "might have been brought" in the district court in which the moving party seeks to have the case transferred. Second, the court must inquire as to whether "the convenience of parties and witnesses" and "the interest of justice" weigh in favor of the transfer. See Modern Computer Corp. v. Ma, 862 F. Supp. 938, 947-48 (E.D.N.Y. 1994).

The decision whether to transfer venue is left to the sound discretion of the district court. See Red Bull Assocs. v. Best Western Int'l, Inc., 862 F.2d 963, 967 (2d Cir. 1988); Modern Computer Corp., 862 F. Supp. at 948. The party seeking to have the action transferred has the "burden to clearly establish that a transfer is appropriate and that the motion should be granted." Laumann Mfg. Corp. v. Castings USA Inc., 913 F. Supp. 712, 720 (E.D.N.Y. 1996). Courts have employed a variety of factors, no one of which is dispositive, that serve as guidelines to help determine whether to transfer a case to another district. See Modern Computer Corp., 862  [*19]  F. Supp. at 948. Some of the factors courts consider include: (1) convenience of the parties; (2) convenience of witness; (3) relative means of the parties; (4) locus of operative facts and relative ease of access to sources of proof; (5) attendance of witnesses; (6) the weight accorded the plaintiffs choice of forum; (7) calendar congestion; (8) the desirability of having the case tried by the forum familiar with the substantive law to be applied; (9) practical difficulties; and (10) how best to serve the interest of justice, based on an assessment of the totality of material circumstances. See id.

Turning to the first part of the inquiry, this action could have been brought initially in the Southern District of New York because the requirements of subject matter jurisdiction, personal jurisdiction, and proper venue are all satisfied there. See Fairfax Dental (Ireland) Ltd. v. S.J. Filhol Ltd., 645 F. Supp. 89, 91 (E.D.N.Y. 1986), aff'd mem. sub nom. Fairfax Dental (Ireland) Ltd. v. Sterling Optical Corp., 11 F.3d 1074 (Fed. Cir. 1993).

As set forth above, § 301 of the LMRA provides the federal district court with subject matter jurisdiction over this matter. This rule  [*20]  holds whether the court in question is this court or the district court for the Southern District of New York. Further, as an additional ground, subject matter jurisdiction exists pursuant to the Consent Decree which confers subject matter jurisdiction on the Southern District of New York.

The district court for the Southern District of New York also has personal jurisdiction over all parties because both maintain offices for the conduct of business in the Southern District. Defendant Union maintains its office in New York City and most of its activities in connection with the representation of local unions are conducted throughout the New York City metropolitan area. The plaintiff PAC also maintains an office in New York City.

Venue is proper in the Southern District because venue is proper in the district in which the defendant resides or where a substantial part of the events or omissions giving rise to the claim occurred. See 28 U.S.C. § 1391(b). As noted, defendant Union resides in the Southern District of New York. Furthermore, the court finds that a substantial part of the events giving rise to the PAC's claim occurred in the Southern District. Venue would also be proper  [*21]  in the Southern District pursuant to the LMRA. Section 185(c) of the LMRA provides, in relevant part, that a district court shall have jurisdiction over an action against a labor organization "in the district in which such organization maintains its principal office." Because the defendant Union's principal office is in the Southern District of New York, this action could have been brought there in the first instance pursuant to the LMRA. See Morris v. Local 819, IBT, 1995 U.S. Dist. LEXIS 6390, 94 CIV 8010, 1995 WL 293623 (S.D.N.Y. May 11, 1995).

With the first inquiry satisfied, the court finds that the second inquiry is also answered in the affirmative because it is convinced that a transfer to the Southern District would serve to convenience the parties and further the interest of justice.

More specifically, as noted, the operative facts giving rise to this action mostly occurred in the Southern District. This factor-- the occurrence of the operative facts-- also includes the consideration of the relative ease of access to the sources of proof. See U.S. Fidelity and Guar. Co. v. Republic Drug Co., Inc., 800 F. Supp. 1076, 1081 (E.D.N.Y. 1992). As defendant Union set forth in affidavit form, much  [*22]  of the documentary evidence is located in the Southern District. This factor strongly militates in favor of transfer.

Also, most of the witnesses in this action reside in the Southern District. "Courts generally view the convenience of witnesses as the single most important factor in the balance." Pilates, Inc. v. Pilates Institute, Inc., 891 F. Supp. 175, 183 (S.D.N.Y. 1995) (citations omitted). While the plaintiff PAC points out that its chairman, Samuel Fresina, resides in the Northern District, many of the other witnesses, including many of the non-party witnesses, reside in the Southern District.

The court also notes that judicial economy militates in favor of transfer. It is well established that "transfer is particularly appropriate where there is a prior lawsuit pending in the transferee district involving the same facts, transactions, or occurrences." Levitt v. State of Maryland Deposit Ins. Fund Corp., 643 F. Supp. 1485, 1493 (E.D.N.Y. 1986); see also Nieves v. American Airlines, 700 F. Supp. 769, 773 (S.D.N.Y. 1988). The courts of this Circuit favor resolution of related claims in the same forum to promote "more efficient conduct of pretrial discovery, to save  [*23]  witnesses time and money in both trial and pretrial proceedings, and to avoid duplicative litigation and inconsistent results." Coultman v. National Railroad Passenger Corp., 857 F. Supp. 231 (E.D.N.Y. 1994). In this action, the complained of conduct arises out of the action taken by the Monitor pursuant to the Consent Decree. Judge Sweet in the Southern District was directly involved with many of the prior and ongoing actions which relate to the Consent Decree and judicial resources would be conserved and results will remain consistent by transferring this action to the Southern District. See Fairfax Dental, 645 F. Supp. at 91-92 (a court can consider the existence of related actions in the transferee court because litigation in the same forum furthers the interest of judicial economy). Courts have held that the interest of justice favors the forum in which a consent decree was entered where the consent decree governed the conduct underlying the action. See Jermosen v. Coughlin, 1992 U.S. Dist. LEXIS 7318, No. 87 Civ. 7803, 1992 WL 116319 (S.D.N.Y. May 19, 1992); Marshak v. Admiral Cruises, 1991 U.S. Dist. LEXIS 12989, No. 90 Civ. 317, 1991 WL 191233 (S.D.N.Y. Sept. 16, 1991).

Balancing the material circumstances of this  [*24]  case in light of the factors set forth above, the court finds that the defendant Union clearly satisfied its burden of demonstrating that transfer is appropriate. Accordingly, the court grants defendant Union's motion to transfer this action to the Southern District of New York.

To reiterate, the court DENIES the plaintiff PAC's motion to remand and GRANTS defendant Union's motion to transfer this action to the Southern District of New York.

IT IS SO ORDERED.
 
Dated: March 23, 1998

Syracuse, New York

Neal P. McCurn

Senior United States District Judge