The Parties heretofore contested venue, but those issues were resolved by the court in previous opinions. See Murray v. Sevier, 156 F.R.D. 235, 251 (D.Kan. 1994) (transferring venue to the United States District Court for the Middle District of Alabama pursuant to 28 U.S.C. § 1404(a)); see also Murray v. Sevier, 993 F. Supp. 1394, 1399 (M.D.Ala. 1997) (refusing to overturn the transferor court's decision). Additionally, the Parties have not contested personal jurisdiction subsequent to the case's transfer to the Middle District of Alabama.
See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 2203-5, 100 L.Ed.2d 855 (1988); Parker v. Connors Steel Co., 855 F.2d 1510, 1526-27 (11th Cir. 1988). Because of the many rulings by Judge De Ment that pre-dated the summary judgment decision, see, e.g., Murray v. Sevier, 50 F.Supp.2d 1257 (M.D.Ala. 1999); Murray v. Sevier, 993 F.Supp. 1394 (M.D.Ala. 1997), some of which involved exercises of discretion, we conclude that the harmless error standard is practically unworkable and, thus, inappropriate here. See Liljeberg, 108 S.Ct. at 2205 ("[Harmless error] relief is neither categorically available nor categorically unavailable for all § 455(a) violations.").
Whether to apply laches in a particular case is a decision left to the discretion of the trial court. See, e.g., Watz v. Zapata Off-Shore Co., 500 F.2d 628, 633-34 (5th Cir. 1974) ("We recognize that because laches is a creature of equity the trial judge enjoys a wide area of discretion."); Murray v. Sevier, 993 F. Supp. 1394, 1404 (M.D. Ala. 1997) ("Laches is an equitable doctrine committed to the sound discretion of the trial court.") (citation omitted). In exercising that discretion, the Court is cognizant that, although the Eleventh Circuit has not weighed in on this point, numerous other federal authorities have classified laches as a disfavored defense in the environmental context.
The plaintiffs also argue that the defendants' responsibilities as directors of an unincorporated association are "analogous to the responsibility of corporate directors and officers." Murray v. Sevier, 993 F. Supp. 1394, 1404 (M.D. Ala. 1997). See also Kovich v. Paseo Del Mar Homeowners' Association, 41 Cal. App. 4th 863, 866-867 (1996) (unincorporated association performing "quasi-governmental functions . . . had a fiduciary relationship with the seller and other association members"); Kelly v. Astor Investors, Inc., 462 N.E. 2d 996, 999 (Ill.Ct.App. 1984) ("[T]he officers and directors of a not-for-profit organization stand in a fiduciary relationship to the members of the association.").
After transfer, Murray filed a motion to re-transfer the case back to Kansas, and that motion was denied. Murray v. Sevier, 993 F. Supp. 1394 (M.D. Ala. 1997). The case has since proceeded through final disposition, Murray v. Sevier, 50 F. Supp.2d 1257 (M.D. Ala. 1999), and appeal, and returns to the Middle District following an Eleventh Circuit Court of Appeals decision vacating the Alabama district court orders and judgment and for reassignment, because, according to the appellate court, the district judge should have recused himself.
Based upon this statement, a judge in this district concluded that the rule of repose did not bar a claim where there was no constructive notice of that claim. See Murray v. Sevier, 993 F. Supp. 1394 (M.D.Ala. 1997). In addition, the Eleventh Circuit has stated that whether or not the rule of repose would operate to bar a plaintiff's claims is a question for the Alabama Supreme Court to decide.