Skevofilax v. Quigley

810 F.2d 378, 124 L.R.R.M. (BNA) 2431

Opinions

GIBBONS, Chief Judge:

The Township of Edison, New Jersey appeals from a district court post-judgment order directing the township to pay a judgment entered in favor of Marcos and Louise Skevofilax and Michael Michaels against three co-defendant police officers employed by the township. The Skevofi-laxes and Michaels obtained separate damage awards in the district court against both the individual police officers and the township.¹ Those awards are not challenged. At the time of the events giving rise to the lawsuit, the township employed the police officers under the terms of a collective bargaining agreement that provided that the township would provide “the necessary means for the defense” in any action arising out of or incidental to the performance of their duty. The collective bargaining agreement also provided that

[i]n the event of a judgment against a member of the bargaining unit arising out of or incidental to the performance of his duty, the Employer agrees to pay for said judgment or arrange for the payment of said judgment.

The collective bargaining agreement further provided that the employer

agrees to continue to maintain in full force and effect all [liability] insurance now provided by the Employer for the benefit of, and covering Employees of the Employer and specifically Employees who are members of the bargaining unit covered by this Agreement.

The record before us makes it clear that the township contracted for liability insurance. We are called upon to decide whether, in light of the provisions of the collective bargaining agreement, the district court properly ordered the township to satisfy the judgments rendered against the individual defendant police officers.

I.

At the heart of this appeal lies a disagreement amongst the insurance carrier, the township, and the individual police officers. After the district court entered judgment in favor of the plaintiffs, the carrier refused to pay either the $74,964.14 award against the township or the awards totaling $563,457.94 against the police officers. The carrier apparently took the position that because the conduct of the police officers violated the criminal law of New Jersey, any indemnification agreement, embodied either in a collective bargaining agreement or in an insurance contract, was void as a violation of New Jersey public policy. Although that ground for resisting payment had no relevance to the judgment against the township for negligence, the carrier nevertheless refused to pay the judgment against the township unless it first obtained from the officers a release of any right to indemnification they had under the collective bargaining agreement.

Since no payment was forthcoming, the plaintiffs, acting pursuant to Rule 69 of the Federal Rules of Civil Procedure, caused a writ of execution to be levied by the United States Marshal upon the township’s bank account. At the same time and acting pursuant to the same Rule, they commenced garnishment proceedings upon the salaries of the police officers. In conjunction with these latter proceedings the district court held a hearing on April 15, 1985, at which time the plaintiffs notified the court that the police officers had commenced in the New Jersey Superior Court an action against the township to compel it to honor the indemnity undertaking contained in the collective bargaining agreement. They also notified the district court that the judgment against the township remained unpaid.

At the district court’s suggestion the plaintiffs subsequently obtained and served upon the township an order directing it to show cause why it should not pay the judgments rendered against the individual police officers. The order provided for its service on the attorneys for the defendants on or before April 22, 1985, together with the papers on which the moving parties relied. These papers included the affidavit of Rafael Abramovitz, an attorney for the plaintiffs. The affidavit asserts that the collective bargaining agreement obliges the township, as a matter of contract, to pay the outstanding judgments against the individual police officers. Attached to the affidavit is a copy of the relevant portions of the collective bargaining agreement between the township and its policemen. Also attached is a copy of the township’s resolution implementing the collective bargaining agreement by authorizing the retention at township expense of attorneys for the defendant police officers in connection with an indictment growing out of the same incident giving rise to the suit. The resolution specifically acknowledged that “all of these defendants were police officers on active duty at the time of the incident charged in the indictment.” Joint Appendix at 28.

The plaintiffs also served and filed a memorandum of law in support of their motion for an order compelling the township to pay the judgment against the police officers. That memorandum addressed the court’s jurisdiction to issue such an order, and the township’s contractual obligation to indemnify the officers.

When served with the order to show cause and supporting papers, the defendant police officers moved in writing to join in the plaintiffs’ motion. In support of the plaintiffs’ motion, the officers supplied to the district court and to counsel for the township copies of the brief they had filed in the New Jersey court in support of their own motion for summary judgment on their claim for contract indemnification.

On the return date of the order to show cause the township appeared, represented by two attorneys. One, Peter DeSarno, was the regular township attorney, and the other, Martin McGowan, was a member of the firm that the insurance carrier had retained on behalf of the defendants. The police officers had their own counsel. Neither DeSarno nor McGowan filed papers in opposition to the relief sought by the plaintiffs, nor did they request additional time to do so. Neither suggested that the district court should abstain from deciding any legal issue that might have been resolved in the then-pending state court action. Both addressed the merits of the motion.

The township argued that the district court did not have jurisdiction to order the township to pay the judgments rendered against the individual defendants. Alternatively, it contended that the indemnity agreement in the collective bargaining agreement was void under New Jersey law. It did not claim that there were any issues of material fact concerning the construction of the indemnification clause. The record is unambiguous in this respect. Mr. DeSarno spoke on behalf of the township with respect to the indemnification claims. His argument with respect to the collective bargaining agreement, in full, was as follows:

THE COURT: What about your collective bargaining agreement? What did you do with that[?]

MR. DE SARNO: It has to be read in connection with the statute, Judge.

THE COURT: Oh, you mean you make [an] agreement with your employees, and then you later take it and shove it at them [like] that[?]

MR. DE SARNO: Judge, it is strictly a state matter. The Moya [v. City of New Brunswick, 90 N.J. 491, 448 A.2d 999 (1982) ] case settles the issues. The Moya case talks about when ... officers are entitled to be represented[;] it talks inferentially about the obligations that may be the obligation[s] of the municipality. This is willful, wanton action. If there is coverage, I have suggested to the counsel for the officers, as a matter of fact, who is taking the burden of these plaintiffs, that he ought to join the carrier. There might be some coverage, but to say that the Township itself directly is liable, I think is incorrect, and it is against all the law of New Jersey.

THE COURT: What? Your collective bargaining agreement?

MR. DE SARNO: What about it, Judge?

THE COURT: Would you please explain to me the effect of a collective bargaining agreement on this?

MR. DE SARNO: The collective bargaining agreement merely recites the statute, it talks about obligations, you have to read it in the context of the whole position, 40(a). It really recites the statute about whether they are entitled to be represented. Then it goes on to say that the first part of that section they pulled out wasn’t put into the brief, I have it in brief which I don’t have but when you read it all in context, what it suggests, and I suggest this to your Honor, collective bargaining agreement is not dispositive of ultimately the issue in this case. It depends what the Constitution permits us to do and what other statutory authority permits us to do. It does not permit us to pay this kind of judgment.

THE COURT: “In the event of a judgment against a member of the bargaining unit arising out of or incidental to the performance of his duty, the employer agrees to pay for said judgment or arrange for the payment of said judgment.” What could be clearer than that[?]

MR. DE SARNO: Assuming that it could be done within the framework of the Constitution of New Jersey, and when the statutory authority of a municipality. You have to assume that, Judge, and you can’t do it.

THE COURT: You mean you entered into [an] agreement with your employees violative of both the Constitution and the statute[?]

MR. DE SARNO: That is not unusual, Judge, in collective bargaining agreements.

THE COURT: Oh, Mr. DeSarno.

MR. DE SARNO: There are not a managerial things that contracts are not enforceable. You are reading it too strictly. You are not understanding the framework of the state law that surrounds itself.

Joint Appendix at 100-02.

The colloquy between court and counsel discloses clearly that the court understood counsel to be arguing not that the indemnity clause on which plaintiffs relied was in fact inapplicable, but that, assuming it was, the clause was illegal. The court’s understanding of the township’s argument was reiterated later in the hearing, when Mr. Abramovitz, the plaintiffs’ attorney observed:

MR. ABRAMOVITZ: Yes. If he is challenging the clear and obvious clause in the contract, I think the words defeat him. The contract is beyond dispute.

THE COURT: I think his argument, and I could be wrong, but I think his argument is, you know, the contract is fine, which the laws of the State of New Jersey say that they are not required to compensate for. I think that is his argument.

Id. at 105-06. Mr. DeSarno made no objection to this characterization of his position on the contract. No issue of contract interpretation was ever clearly tendered to the district court.

Mr. DeSarno did contend that the district court should not decide the indemnity issue, but that argument appears to have been addressed to the township’s jurisdictional contention. From what appears in the transcript of the argument, the township seems to have urged that because the indemnification question had not been litigated during the trial, it could not be litigated in a proceeding under Fed.R.Civ.P. 69. The following exchange occurred:

MR. DE SARNO: But your Honor, the judgment you are enforcing is not against the Township of Edison. That is the problem. There was never a judgment entered against the township except in one respect. Now you—

THE COURT: I can enforce it against the Township of Edison.

MR. DE SARNO: You are litigating an issue that was never raised in the trial before, your Honor. It is a separate, distinct issue.

THE COURT: It was never an issue in the trial.

MR. DE SARNO: It was never an issue, that’s right.

THE COURT: Why should it have been an issue in the trial? Who is going to pay an obligation that nobody doubted the Township of Edison was going to pay, or its carrier?

Joint Appendix at 103.

The court explained that at trial it had been stipulated that the police officers had been acting in the course of their duties, and without objection the court instructed the jury as follows:

I charge you that the defendant police officers do not contest the facts that whatever actions they took with respect to plaintiffs Marcos Skevofilax and Michael Michaels, they did so in their capacity as officers of the police force of the Township of Edison.

The township could have objected both to the stipulation and to the instruction, since they bore not only on the fourteenth amendment state action issue but also on the state law negligence claim against it. It was the trial court’s recollection that the attorney for the township stipulated and agreed to the instruction. The township attorney contended otherwise, but offered no supporting affidavit or transcript reference. The court chose not to resolve the dispute over the stipulation, however, but instead ruled that as a matter of law the indemnity agreement applied.

Having rejected the township’s jurisdictional arguments and its New Jersey public policy arguments, the district court ordered the township to do the following:

a) To pay and satisfy the portion of said judgment entered against the individual police officers in favor of plaintiff Marcos Skevofilax for compensatory damages, as reduced by the remittitur in the sum of $296,700.19;

b) To pay and satisfy the portion of said judgment entered against the individual police officers in favor of Marcos Skevofilax in the amount of $55,236.75, being the judgment for compensatory damages as reduced by the remittitur entered by reason of malicious prosecution;

c) To pay and satisfy the portion of the said judgment entered against the Township of Edison in favor of Marcos Skevo-filax in the amount of $74,964.14, for compensatory damages for the negligence of said Township[;]

d) To pay and satisfy the portion of said judgment entered against the individual police officers in favor of Michael Michaels in the amount of $11,000.00 for compensatory damages for the negligence of said Township[;]

e) To pay and satisfy the portion of said judgment entered against the individual police officers in favor of Michael Michaels in the amount of $1,000.00 being the judgment for compensatory damages for malicious prosecution[;]

f) To pay the plaintiff the sum of $3,048.70 which is the amount entered by the Clerk of the Court for costs in this action;

g) To pay all above stated sums with interest at the rate of 11.74% from May 31, 1984, being the date of entry of judgment, to the present[;]

h) To pay to the plaintiffs the sum of $199,521.00, being the amount of attorneys fees awarded by this CourtO]

i) To pay to the plaintiffs the sum of $5,706.45, being the amount of disbursements previously awarded by this CourtO]

j) To pay the sums listed in h and i hereof, with interest at the rate of 11.74% from November 28, 19840]

k) To pay to plaintiff’s [sic] additional attorneys fees and disbursements in the amount of $3,763.00.

Skevofilax v. Quigley, Civ. Action No. 79-2783 (D.N.J. April 25, 1985) (order).

II.

The township objects to that portion of the order requiring it to pay the judgments rendered against the individual officers.² It advances the same arguments that it proffered to the district court — that the district court lacked jurisdiction to enter the order and that, even if the court had the requisite jurisdiction, it erred in holding that the indemnity provision in the collective bargaining agreement was enforceable with respect to the instant judgment.³

A.

The township’s jurisdictional argument starts with the preamble to the district court order, which expressly referred to Rules 69 and 70 of the Federal Rules of Civil Procedure. That reference, the township urges, confines the “jurisdictional” dispute to an inquiry into the district court’s authority to issue orders in aid of enforcement of its judgment.

The appellees respond that even if one looks only at the court’s authority to enforce its judgment that authority is broad enough to sustain the district court order. They point out that Rule 69 cross-references to “procedings supplementary to and in aid of judgments” of the state in which the district court is held. In light of this language and New Jersey law, they contend, Rule 69 authorizes a district court to order a debtor of a judgment debtor to pay a judgment rendered against the judgment debtor.

The New Jersey statutory scheme for the enforcement of a judgment against rights and credits of a judgment debtor is clear:

Rights and credits of a defendant in execution ... may be levied upon, taken and sold or collected by virtue of such execu-tion____

NJ.Stat.Ann. § 2A:17-59 (West 1952).

In lieu of a sale, the officer levying the execution may, in his own name as such officer, liquidate such rights and credits by collection, or, with the assent of the judgment creditor and subject to the provisions of this article, in any other manner.

N.J.Stat.Ann. § 2A:17-61 (West 1952).

For the purpose of liquidation the officer levying the execution shall, at the request of the judgment creditor, sue or take proper judicial proceedings, in his own name as such officer, to obtain such recovery or relief as defendant or a receiver of defendant would be entitled to.

N.J.Stat.Ann. § 2A:17-62 (West 1952). This last-quoted provision authorizes the adjudication of a dispute between a judgment debtor and a third party so as to assure the satisfaction of a judgment. See Barrett Co. v. United Building & Construction Co., 5 NJ.Misc. 87, 88, 135 A. 477, 478 (1926); Sebring v. Pratt, 91 N.J.L. 393, 393-94, 103 A. 999, 999 (1918); Johnson v. Lyons, 103 N.J.Eq. 315, 143 A. 373, 374 (Ch. 1928).

The township urges that the liquidation procedure prescribed by section 2A:17-62 may not be utilized for the enforcement of a federal court judgment because that statutory provision cannot enlarge federal court jurisdiction. Obviously, however, neither the liquidation provision in section 2A:17-62, nor the more summary remedy in section 2A:17-59, nor any other New Jersey statute has anything at all to do with federal court jurisdiction. Those statutes, however, constitute “[t]he practice and procedure [of execution] of the state in which the district court is held.” Fed.R. Civ.P. 69(a). By virtue of Rule 69 the same relief is available in federal court for the satisfaction of a federal court judgment as would be available in a state court. Rule 69 does not contemplate that the holders of federal judgments must resort to state tribunals for their enforcement. Green v. Benson, 271 F.Supp. 90, 93 (E.D.Pa.1967) (holding that district court had ancillary jurisdiction to adjudicate garnishment action by a judgment creditor against the nonparty insurer of a judgment debtor).

It should be noted that a holding that a federal tribunal lacks ancillary jurisdiction to enforce its own judgment would be equally applicable to the district court’s effort to garnish the township’s bank account. The bank is in the same debtor relationship to the township as the township is to the individual police officers. Thus, although in this case the township eventually paid the judgment rendered against it after the garnishment of its bank account, in the future, under the jurisdictional rule the township proposes, such a garnishment would not be possible in the absence of a separate basis of federal subject matter jurisdiction over the garnishee bank. Even the fact that the garnishee may not dispute the debt would not be dispositive, for the summary remedy specified in section 2A:17-59 and the liquidation remedies specified in section 2A:17-61 would be equally subject to the township’s proposed requirement of a separate basis of federal subject matter jurisdiction over the garnishee. Since such a separate basis of subject matter jurisdiction will rarely exist, the effect of the township’s position would be that in almost all cases federal courts would be unable to enforce their judgments by resort to garnishment process.

The untoward consequences of insistence upon a federal district court possessing an independent basis of subject matter jurisdiction over a garnishee would not be confined to efforts at post-judgment enforcement. Under Rule 64 of the Federal Rules of Civil Procedure, prejudgment in rem and quasi in rem remedies are available “under the circumstances and in the manner provided by the law of the state in which the district court is held[.]” Fed.R.Civ.P. 64. The township’s proposed approach would mean that such remedies would be available only in one instance — a case in which there is complete diversity between the plaintiff and both the defendant and the garnishee. Garnishment or any similar provisional prejudgment remedy could never be available in a federal question case, for there would be no federal question claim against the party subject to the prejudgment seizure. In fact, such a claim would only exist against the defendant. Yet Rule 64 provides explicitly for prejudgment garnishment and obviously contemplates its availability in diversity cases as well as in federal question cases. The township’s proposed rule would make this remedy unavailable in the latter class of cases. No interests of the United States, or of the states in the federal union suggest such a patently unsound ancillary jurisdiction rule. The township’s reference to interests of comity is totally unpersuasive in the absence of some reference to an interest of the State of New Jersey which would be offended by permitting a federal court to take the steps required to enforce its judgments. A rule requiring that there be a separate state lawsuit to enforce a federal court judgment by garnishment process would actually impair any identifiable interest of that state. It would impose on the state courts the role of serving as an auxiliary or adjunct to the district court by cleaning up the loose ends of a district court lawsuit.⁴

The township also contends that, because it disputes its liability under the collective bargaining agreement, there is no method under New Jersey law to enforce against it the judgment against the police officers. In making that assertion it relies on National Cash Register Co. v. 6016 Bergen-line Ave. Corp., 140 N.J.Super. 454, 457, 356 A.2d 447, 449 (App.Div.1976) (per cu-riam). That case, however, concerns the summary turnover procedure authorized by N.J.Stat.Ann. § 2A:17-63 (West 1952). It does not address the question whether a claim against a debtor of the judgment debtor can be reached by virtue of the liquidation provision in N.J.Stat.Ann. § 2A: 17-62 (West 1952).

We hold, therefore, that the district court has ancillary jurisdiction to adjudicate a garnishment action by a judgment creditor against a nonparty to the original lawsuit which may owe the judgment debt- or an obligation to indemnify against the judgment, or any other form of property.⁵

13.

Entirely apart from the court’s authority under Rule 69 and New Jersey law, there is in this case a separate basis for ancillary jurisdiction over the dispute with respect to the township’s obligation to indemnify the police officers. Had the carrier in the prejudgment stage asserted on behalf of the township that it would not honor the contractual indemnity agreement in the collective bargaining agreement, it would have been appropriate for the police officers to file a cross-claim against the township for contract indemnification pursuant to Rule 13(g). See, e.g., Thomas v. Maleo Refineries, Inc., 214 F.2d 884, 886 (10th Cir.1954); President & Directors of Georgetown College v. Madden, 505 F.Supp. 557, 593-95 (D.Md.1980), aff'd in part and dismissed in part, 660 F.2d 91 (4th Cir.1981); Coyne v. Marquette Cement Manufacturing Co., 254 F.Supp. 380, 388 (W.D.Pa.1966); 6 C. Wright and A. Miller, Federal Practice and Procedure § 1431, at 169 (1971). There is no time limit on the filing of such a cross-claim, and a district court may separate its adjudication from the main trial. See Fed. R.Civ.P. 42(b).⁶

When the police officers joined in the plaintiffs motion, they in effect made a Rule 13(g) cross-claim against the township even though they did not formally so designate their claim. The fact that the officers filed their cross-claim after the adjudication of the main claim does not in these circumstances eliminate the district court’s ancillary jurisdiction to consider it. Blackburn Truck Lines, Inc. v. Francis, 723 F.2d 730, 732 (9th Cir.1984).⁷ Nor does the existence of the additional procedural requirements for the post-judgment amendment of pleadings preclude the exercise of such jurisdiction, for those procedural difficulties do not bear upon the district court’s subject matter jurisdiction and thus lend no support to the township’s deficient analysis of the scope of ancillary jurisdiction.⁸

Defects, if any, in the proceedings resulting in the order appealed from were at most procedural, not jurisdictional. Whether one approaches the matter as a Rule 69(a) proceeding or as a Rule 13(g) proceeding, the township was entitled to a procedure appropriate to the nature of the dispute, which was limited to the issue of the legality under New Jersey law of the township’s indemnity undertaking. The township tendered no disputed issues of material fact, and it never urged that it required a more adequate opportunity to marshall its legal arguments, even after the district court pointed out that it had filed no responsive papers. Indeed the township’s legal position was presented to the district court in substantially the same manner as it is presented on appeal.⁹ Thus any procedural irregularities resulting from the summary manner in which the district court resolved the dispute over the township’s indemnification undertaking must be regarded as harmless. “[A]t every stage of the proceeding [we] must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” Fed.R.Civ.P. 61.

III.

Our holding that the district court had ancillary jurisdiction requires that we address the merits of the township’s objection to the district court’s disposition of the dispute over the indemnification agreement. The sole substantive defense that the township offered in the district court was that the collective bargaining agreement, if construed to mean what it unequivocally says, would be illegal under New Jersey law. That position is without merit.

The New Jersey courts have expressly held enforceable a municipality’s obligation, contained in a collective bargaining agreement, to indemnify city officers for compensatory damage awards arising out of unlawful acts. See City Council v. Fumero, 143 N.J.Super. 275, 362 A.2d 1279 (Law Div.1976). At issue in Fumero was a municipality’s obligation under a collective bargaining agreement — indistinguishable for purposes of this appeal from the one between the Township of Edison and its police officers — to defend and indemnify municipal officers who were defendants in a section 1983 suit. The municipality had sought a declaratory judgment against its insurance carrier and the defendant officers after the carrier had refused to defend the officers. With respect to the enforceability of the collective bargaining agreement’s indemnification provision, the New Jersey court wrote:

The collective bargaining agreement also addressed itself to the issue of indemnification for judgments which might be recovered against members of the bargaining unit. Counsel have not referred to any statutory provision which addresses itself to this issue. In the absence of a controlling statute, the terms of the contract control the rights of the respective parties. The agreement presently before the court requires the municipality to indemnify the individual officers for a judgment of compensatory damages. No right of indemnity exists if a judgment for punitive damages is returned. Such a contractual provision is in accord with public policy.

Id. at 284, 362 A.2d at 1283-84 (citations omitted). The court also held that the insurance carrier was obliged under its policy to defend and indemnify the police officers. Id. at 288, 362 A.2d at 1285.¹⁰

Relying on Moya v. City of New Brunswick, 90 N.J. 491, 448 A.2d 999 (1982), and Valerius v. City of Newark, 84 N.J. 591, 423 A.2d 988 (1980), the township contends that the indemnification clause is contrary to New Jersey public policy and is therefore unenforceable. The authorities cited by the township have no bearing upon this appeal. They deal with the entirely distinct matter of the statutory obligation to defend and indemnify imposed upon municipalities and other government agencies by the New Jersey Tort Claims Act. See Moya, 90 N.J. at 495, 448 A.2d at 1001; Valerius, 84 N.J. at 593, 423 A.2d at 989. The statutory liability at issue in Moya and Valerius has nothing to do with the legality of a contract indemnification undertaking.

Fumero is dispositive of the issue of the enforceability of the indemnification clause at issue in this case. Thus we reject the township’s contention that the district court erred as a matter of law in holding that the indemnification clause required the township to satisfy the judgments rendered against the individual police officers.

IV.

The district court had ancillary jurisdiction to proceed against the township by garnishment proceedings to enforce the township’s contract indemnification undertaking. Both Rule 69(a) and Rule 13(g) provide procedural mechanisms for the exercise of that ancillary jurisdiction. The district court’s holding that the township owed a duty to indemnify the officers and that the judgment creditors of the defendant police officers could reach the township and enforce that duty is consistent with New Jersey law. The order appealed from will therefore be affirmed.

1 . In the underlying proceeding the plaintiffs alleged that the defendant officers and the township had violated their constitutional rights and sought damages under 42 U.S.C. § 1983 (1982). The district court thus had subject matter jurisdiction. See 28 U.S.C. § 1331 (1982). The plaintiffs also pleaded pendent state law claims against the township for negligence and against the police officers for malicious prosecution. A seven-week trial produced a judgment in favor of appellee Skevofilax against the township for $74,964.14 for its negligence and against the police officers individually for $296,700.19 for their violation of his constitutional rights and $55,236.75 for malicious prosecution. Appellee Michaels obtained a judgment against the police officers individually for $11,000 for their violation of his constitutional rights and $1,000 for malicious prosecution. The district court, acting pursuant to 42 U.S.C. § 1988 (1982), also awarded a judgment for attorneys fees against the police officers individually in the sum of $199,521.00. No punitive damages were awarded and the question of punitive damages was not an issue in this appeal.

2 . After the notice of appeal was filed the insurance carrier acknowledged its obligation to pay the $74,964.14 negligence judgment against the township. The township then paid that amount, but did so only after the district court entered an order directing the First National State Bank of Edison to turn over to the United States Marshal funds in the township’s bank account.

3 . In a document captioned "Certification of Peter DeSarno,” filed in this court in support of an application for a stay of execution without a supersedeas bond, the township noted the contract indemnity provision and stated:

As previously indicated the three officers in question were off duty, out of uniform, in a bar and were engaged in a fight which resulted in all three being disciplined by the Township, one convicted of assault and battery. It is the Township’s position that the judgment entered against these individuals is not covered by the above referenced contract provision.

Joint Appendix at 45. This "certification” was never presented to the district court and, as indicated in the text above, the township never argued at trial that the indemnity clause did not cover the activities in question. We were advised at oral argument that the defendant police officers have obtained summary judgment in their action pending in New Jersey court to enforce the collective bargaining agreement's indemnity clause.

4 . The township finds support for its proposed limitation of the district court’s judgment enforcement powers in H.C. Cook Company v. Beecher, 217 U.S. 497, 30 S.Ct. 601, 54 L.Ed. 855 (1910). That opinion, by Justice Holmes, is a typically delphic pronouncement. It states the result, but not the reasons for that result. Justice Holmes probably intended the opinion to be an interpretation of the then-governing statute, the Conformity Act of 1872, ch. 255, 17 Stat. 196. If it was so intended, Beecher is wholly irrelevant to the issue of ancillary jurisdiction exercised pursuant to Rule 69, a rule that was not drafted until after enactment in 1934 of the Rules Enabling Act, Pub.L. No. 416, 48 Stat. 1064 (codified at 28 U.S.C. § 2072 (1982)). If, on the other hand, Justice Holmes intended his opinion to serve as a pronouncement on the constitutional limits of ancillary jurisdiction, he certainly kept that intention to himself, for it is nowhere mentioned in the opinion. Thus, beyond its superficial factual similarity, Beecher bears no resemblance to this case before us and lends no support to the township’s jurisdictional position.

5 . Judges Weis, Higginbotham, Sloviter, and Al-disert join in this holding.

6 . Furthermore, the township could have moved pursuant to Rule 14(a) to join the carrier as a third party. See, e.g., Government Employees Ins. Co. v. United States, 400 F.2d 172, 174 (10th Cir.1968); Southern Farm Bureau Casualty Ins. Co. v. United States, 395 F.2d 176, 179-80 (8th Cir.1968); Impex Agricultural Commodities Div. Impex Overseas Corp. v. Pamess Trucking Corp., 576 F.Supp. 587, 591 n. 2 (D.NJ.1983). Im-pleading would have been proper even if the carrier had been conducting the defense, so long as the carrier contested its indemnification liability. Rosolis v. Universal Distributors, Inc., 21 F.R.D. 169, 172 (D.Conn.1957); 6 C. Wright and A. Miller, Federal Practice and Procedure § 1449, at 267 (1971).

7 . The conclusion that the district court had ancillary subject matter jurisdiction over this cross-claim draws additional support from Barrow v. Hunton, 9 Otto 80, 99 U.S. 80, 25 L.Ed. 407 (1878), in which the Supreme Court held that a judgment debtor's attack on a judgment rendered by a state court could not be removed to federal court because such an attack was ancillary to the original state proceeding. See id. at 83-85. Neither a state court nor a federal court must depend upon the other for the enforcement of a judgment.

8 . Because Judges Sloviter and Higginbotham are satisfied that the federal jurisdiction that supported the original claim supports federal jurisdiction to enforce the judgment, they believe it is unnecessary to reach the question whether the ancillary jurisdiction over a Rule 13(g) cross-claim extends to a cross-claim raised after judgment is entered. Therefore, they do not join in Part II.B. of the opinion.

9 . Arguably, under N.J.Stat.Ann. § 2A: 17-61 (West 1952), the United States Marshal should have been named a nominal party to the garnishment proceeding. The Township does not contend, however, that the absence of such a nominal party resulted in prejudice. See Fed.R.Civ.P. 17(a).

10 . That Fumero is undoubtedly still a correct statement of New Jersey law with respect to contract indemnification is evidenced by the recent New Jersey Supreme Court decision in Moya v. City of New Brunswick, 90 N.J. 491, 448 A.2d 999 (1982), in which that court made clear that a collective bargaining agreement may afford the type indemnification that the township contests here. See id. at 505 n. 8, 448 A.2d at 1006 n. 8.