The opinion of the court was delivered by: CONNER
The National Basketball Association ("the NBA") brought this interpleader action under the Federal Interpleader Act, 28 U.S.C. §§ 1335, 1397, 2361 (1982), after receiving conflicting instructions from officers of the National Association of Basketball Referees ("NABR" or "the union"), a labor union that represents the referees who officiate NBA games, as to the disposition of certain union funds. In a collective bargaining agreement dated December 8, 1983 the members of the NABR authorized the NBA to deduct from their paychecks "check-off" dues monies and remit them to the union. Defendant Jack Madden, the Executive Director of the union and a member of the five-person Executive Board, claimed that as Executive Director he had the exclusive power under the union's constitution and by-laws to control all of the union's business affairs, including the disposition of these check-off dues. He instructed defendant Richard G. Phillips, Esq., counsel for the union, to advise the NBA to deposit the check-off monies with the Provident National Bank in Philadelphia, Pennsylvania. Defendants Michael Mathis, Jim Capers Wally Rooney, and William Saar, the other four members of the Executive Board, claimed that control of the union's affairs properly rested in a majority of the Executive Board. They instructed the NBA to continue to withhold the monies, but not to send them to the Provident National Bank. Instead, they requested that the NBA simply hold the funds until a new bank account could be opened.
On May 8, 1984, Judge Sprizzo of this Court issued a temporary restraining order directing the NBA to deposit into the Registry of the Court all of the check-off monies it might subsequently collect under that agreement. Thereafter, all of the parties to this litigation agreed to extend the temporary restraining order while awaiting disposition of a lawsuit captioned Madden v. National Association of Basketball Referees pending before Judge Joseph P. Braig in the Court of Common Pleas of Philadelphia County, Pennsylvania. Accordingly, the NBA has deposited and continues to deposit the check-off monies with the Registry of this Court; the Registry currently holds approximately $98,000.
The Pennsylvania state court litigation apparently has not yet been resolved. Nonetheless, defendants Mathis, Capers, Rooney, and Saar have moved this Court for summary judgment pursuant to rule 56, Fed. R. Civ. P., on the ground that the dispute pending here is moot. This action is clearly not moot since there is still a live controversy as to who is entitled to control the check-off dues monies, but, for the reasons stated below, I agree that this matter is ripe for summary judgment and the motion granted.
The following facts appear to be uncontroverted. On August 10, 1984, defendant Rooney, on behalf of himself, Mathis, Saar, and Capers, wrote to all of the members of the union and proposed the adoption of a new constitution and by-laws at the union's annual meeting in September. See Affidavit of William Oakes in Support of Motion for Summary Judgment P 5 [hereinafter cited as "Oakes Aff."]. The proposed constitution provided, among other things, that control of the union's business affairs would rest in a majority of the Executive Board and not with the Executive Director. Id., Exh. C P6.1. The proposed constitution also provided that upon its adoption, elections would immediately be held to choose a new Executive Board and Executive Director. Id. Exh. C PP 14.1, 14.2.
The union took up the issue of the proposed constitution at its meeting on September 26, 1984. Oakes Aff. P10. All members were invited to attend, and all did attend with the exception of Madden and two other referees.
Id. After discussion and amendments, the members voted on the proposed constitution by secret ballot. Id. § 12. More than two-thirds of the members voted in favor of it, and the constitution was declared adopted. Id.
In accordance with the terms of the newly adopted constitution, the union held an immediate election to choose a new Executive Board and Executive Director. Id. P14. Nominations were made, and the membership cast secret ballots. Id. Hugh Evans and defendants Rooney, Saar, and Capers, were elected to the Executive Board. Id. P15. Defendant Mathis was elected Executive Director. Id. Defendant Madden was not re-elected.
The newly constituted Executive Board then held a meeting, selected a treasurer, and directed the treasurer to open a bank account in the union's name in new York City into which all union funds would henceforth be deposited. Id. PP17-18. The Court has been advised that such an account has been opened. Id. P 18.
The moving defendants contend that these events render this lawsuit moot because the adoption of the new constitution made it clear that the power to control the union's business affairs rests with a majority of the Executive Board and not with the Executive Director. Accordingly, they maintain that they are entitled to a summary judgment and request that all check-off dues monies be transferred to the union's new bank account.
Defendant Madden does not dispute that the new constitution vests the power to control the union's business affairs in a majority of the Executive Board, but he argues that the motion for summary judgment should be denied because (1) by taking the actions described above, the moving defendants improperly attempted to divest this Court of jurisdiction over this lawsuit; (2) under certain orders entered by Judge Braig in Madden v. National Association of Basketball Referees, the moving defendants lack the legal capacity to make this application for summary judgment; and (3) the election discharging Madden as Executive Director was illegal because it was contrary to his four-year term of office and in violation of § 401 of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. § 481(h), (i) (1982). I address each of these contentions below.
It is well-settled that "'on a motion for summary judgment, the court cannot try issues of fact; it can only determine whether there are issues to be tried.'" Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir. 1983) (quoting Heyman v. Commerce & Indus. Ins. Co. 524 F.2d 1317, 1320 (2d Cir. 1975)). The court of appeals has stated that "'the key is issue-finding, not issue-resolution.'" Id. (quoting United States v. One Tintoretto Painting Entitled "The Holy Family with Saint Catherine and Honored Donor ", 691 F.2d 603, 606 (2d Cir. 1982)). Thus, summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any ...