For the foregoing reasons, the Court will abstain from resolving Vinum's summary judgment motion under the Colorado River doctrine. See North Carolina Life & Accident & Health Ins. Guar. Ass'n v. Alcatel, 876 F.Supp. 748, 755 (E.D. N.C. 1995) (stating that “[t]he proceedings before the NCDOI and this court involve substantially the same parties and issues”).
In this district, whether ERISA provides for a right to contribution among fiduciaries has been addressed briefly, without analysis or resolution. See N. Carolina Life & Acc. & Health Ins. Guar. Ass'n v. Alcatel, 876 F. Supp. 748, 756 (E.D.N.C.), aff'd,72 F.3d 127 (4th Cir. 1995) (citing Brock v. Gillikin, 677 F.Supp. 398, 402–03 (E.D.N.C.1987) ) ("[T]his court interprets ERISA as creating neither an express nor an implied right to indemnification between a plan fiduciary and a non-fiduciary and has specifically stated its ‘doubts that any claim for indemnification or contribution should be read into ERISA.’ "). Alcatel did not involve a contribution claim, but a direct claim by a nonfiduciary against a fiduciary; thus the court held plaintiff, "a potential subrogee and not a plan participant, beneficiary or fiduciary," lacked standing.
December 18, 1995. E.D.N.C., 876 F.Supp. 748. DECISIONS WITHOUT PUBLISHED OPINIONS
This Court also notes that it is not alone in finding claims for indemnification and contribution by a non-fiduciary against a fiduciary preempted. North Carolina Life and Acc. and Health Ins. Guar. Ass'n v. Alcatel, et al., 876 F. Supp. 748, (E.D. N.C. 1995) (finding that ERISA created "neither an express nor an implied right to indemnification between a plan fiduciary and a non-fiduciary and . . . doubts that any claim for indemnification or contribution should be read into ERISA"); see also Travelers Cas. and Sur. Co. of America v. IADA Services, Inc., 497 F.3d 862, 864-868 (8th Cir. 2007) (finding that state common-law claims of indemnification and contribution were preempted as ERISA has a strong presumption against creating additional remedies); Kim v. Fujikawa, 871 F.2d 1427, 1432-33 (9th Cir. 1989) (finding that contribution was not an accessible remedy and was preempted as a claim for a breaching fiduciary); NARDA, Inc. v. Rhode Island Hosp. Trust Nat. Bank, 744 F. Supp. 685, 697 (D. Md. 1990) ("It thus appears that the failure to include the rights of contribution and indemnity in ERISA was intended by Congress and the omission of those rights is not an unaddressed detail or gap to be filled by a federal common law."); Fedex Corp
Likewise, adding "additional claims dependent upon the determination of [the] action pending before state court, will not destroy parallelism." Flanders Filters, Inc., 93 F. Supp. 2d at 672 (citing N.C. Life Accident Health Ins. Guar. Ass'n v. Alcatel, 876 F. Supp. 749, 755 (E.D.N.C. 1995)). Despite the additional claims set forth in this action, the remedies requested in both proceedings are substantially similar: Plaintiffs want Defendants to pay for the damages they incurred as a result of BellCo and its agents' performance (or lack thereof) on the contract and tortious conduct.
es. Kim v. Fujikawa, 871 F.2d 1427 (9th Cir. 1989); Williams v. Provident, 279 F. Supp.2d 894 (N.D. Ohio 2003) (Carr, C.J.), Roberts v. Taussig, 39 F. Supp.2d 1010 (N.D. Ohio 1999) (Economus, J.), and Daniels v. National Employee Ben. Services, 877 F. Supp. 1067 (N.D. Ohio 1995) (Aldrich, J.); Center Physicians Inc. v. Painewebber Group Inc., 1996 U.S. Dist. LEXIS 22657, 1996 WL 622470, (E.D. Mo. 1996); Int'l Bhd. of Painters Allied Trades Union Pension Plan v. Duval, 1994 WL 903314 (D.D.C. 1994); Aks v. Southgate Trust Co., 1992 U.S. Dist. LEXIS 20442, 1992 WL 401708 (D. Kan. 1992); Schloegel v. Boswell, 766 F. Supp. 563 (S.D. Miss. 1991); Physicians Healthchoice v. Trs. of the Auto. Employee Benefit Trust, 764 F. Supp. 1360 (D. Minn. 1991); Hollingshead v. Burford Equipment Co., 747 F. Supp. 1421 (M.D. Ala. 1990); NARDA, Inc. v.Rhode Island Hosp. Trust National Bank, 744 F. Supp. 685 (D. Md. 1990); Franklin v. Aetna Life Insurance Co., 1988 U.S. Dist. LEXIS 10842 (D.S.C. 1988); and North Carolina Life Accident Health Ins. Guar. Ass'n v. Alcatel, 876 F. Supp. 748 (N.C. 1995). In addition to this split of authority, and as both parties acknowledge, there is no prevailing law on this issue from the Sixth Circuit.
Therefore, because ERISA's remedial provisions are fully integrated and comprehensive, courts should not judicially create a contribution remedy." ); Daniels v. Nat'l Employee Benefit Services, Inc., 877 F.Supp. 1067, 1074 (N.D.Ohio 1995); North Carolina Life and Acc. and Health Ins. Guar. Ass'n v. Alcatel, 876 F.Supp. 748, 756 (E.D.N.C.1995), aff'd, 72 F.3d 127 (4th Cir.1995); Int'l Broth. of Painters and Allied Trades Union and Industry Pension Fund v. Duval, No. Civ. A. 92-1099(JHG), 1994 WL 903314 (D.D.C. Apr. 14, 1994); NARDA, Inc. v. Rhode Island Hosp. Trust Nat'l Bank, 744 F.Supp. 685, 695-99 (D.Md.1990); Mutual Life Ins. Co. v. Yampol, 706 F.Supp. 596, 598 (N.D.Ill.1989)(" a fiduciary ... does not appear to be a member of a class for whose especial benefit ERISA was enacted" ). Two district courts in the Fifth Circuit have followed the Ninth Circuit rule.
Other district courts have, however, like the two Judges from this District, held that there is no right of contribution among ERISA fiduciaries. Center Physicians Inc. v. Painewebber Group Inc., 1996 WL 622470 (E.D.Mo. 1996); Int'l Bhd. of Painters Allied Trades Union Pension Fund v. Duval, 1994 WL 903314 (D.D.C. 1994); Aks v. Southgate Trust Co., 1992 WL 401708 (D.Kan. 1992); Schloegel v. Boswell, 766 F.Supp. 563, 569 (S.D.Miss. 1991); Physicians HealthChoice v. Trs. of Auto. Employee Benefit Trust, 764 F.Supp. 1360, 1364 (D.Minn. 1991); Hollingshead v. Burford Equipment Co., 747 F.Supp. 1421, 1445 (M.D.Ala. 1990); NARDA, Inc. v. Rhode Island Hosp. Trust National Bank, 744 F.Supp. 685, 697-98 (D.Md. 1990); Franklin v. Aetna Life Insurance Co., 1988 U.S. Dist. LEXIS 10842 (D.S.C. 1988); see also North Carolina Life Acc. Health Ins. Guaranty Assn. v. Alcatel, 876 F.Supp. 748, 756 (E.D.N.C. 1995) (expressing "'doubts that any claim for contribution should be read into ERISA.'") (citing Brock v. Gillikin, 677 F.Supp. 398, 403 (1987)). As the foregoing list of citations makes clear, there is no prevailing or controlling view on the issue of contribution among ERISA fiduciaries.
Flanders' claim against Conap will arise only if it is determined that Flanders is liable to Intel. As explained in North Carolina Life and Accident and Health Ins. Guar. Ass'n, 876 F. Supp. 748, 755 (E.D.N.C. 1995), additional claims dependent upon the determination of actions pending before state courts, will not destroy parallelism. Because the same parties are litigating substantially the same issues in this forum and in Arizona, the suits are parallel.
See State of New York v. Philip Morris, Inc., 1998 WL 2574 at *2 (S.D.N.Y. Jan.5, 1998) (Section 1367(c) should be invoked "where a state claim constitutes the real body of the case, to which the federal claim is only an appendage"; citing Borough of West Mifflin v. Lancaster, 45 F.3d 780, 789 (3d Cir. 1995)). In analogous situations, district courts have declined to exercise supplemental jurisdiction pursuant to section 1367. See, e.g., North Carolina Life Accident Health Ins. v. Alcatel, 876 F. Supp. 748, 755 (E.D.N.C.) (declining to exercise supplemental jurisdiction over state law claims where ripening of federal ERISA claim was "totally dependent" upon disposition of state law claims), aff'd., 72 F.3d 127 (4th Cir. 1995); Bodenner v. Graves, 828 F. Supp. 516, 518 (W.D.Mich. 1993) (where case presented a single valid federal claim, court would not exercise supplemental jurisdiction over twenty-eight state law claims).