Ferrara et al v. Smithtown Trucking Co., Inc.
Filing
67
MEMORANDUM AND OPINION For the reasons set forth herein, the Court affirms Magistrate Judge Lindsay's April 23, 2015 ruling. SO ORDERED. Ordered by Judge Joseph F. Bianco on 10/30/2015. (Shea, Zoe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-3006 (JFB)(ARL)
_____________________
JOSEPH A. FERRARA, SR., FRANK H. FINKEL, MARC HERBST, DENISE RICHARDSON,
THOMAS F. CORBETT, THOMAS GESUALDI, LOUIS BISIGNANO, ANTHONY D’AQUILA,
MICHAEL O’TOOLE, AND BENEDETTO UMBRA, AS TRUSTEES AND FIDUCIARIES OF
THE LOCAL 282 PENSION TRUST FUND,
Plaintiffs,
VERSUS
SMITHTOWN TRUCKING CO., INC., SMITHTOWN CONCRETE PRODUCTS, CORP., AND
SMITHTOWN REALTY CORP.
Defendants.
___________________
MEMORANDUM AND ORDER
October 30, 2015
___________________
JOSEPH F. BIANCO, District Judge:
The Trustees (“plaintiffs” or “Trustees”)
of the Local 282 Pension Trust Fund (the
“Fund”) bring this action for withdrawal
liability against defendants Smithtown
Trucking Co., Inc. (“Smithtown Trucking”),
Smithtown Concrete Products, Corp.
(“Smithtown Concrete”), and Smithtown
Realty
Corp.
(“Smithtown
Realty”)
(collectively, “defendants”) pursuant to
Sections 502, 515, 4212, and 4301 of the
Employee Retirement Income Security Act
of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et
seq. Defendants presently appeal Magistrate
Judge Lindsay’s April 23, 2015 Order
denying defendants’ motion to compel the
depositions of plaintiff Trustees Thomas
Gesualdi (“Gesualdi”) and Joseph Ferrera
(“Ferrera”), and permitting defendants to
instead serve the plaintiffs with a contention
interrogatory. Defendants argue that
depositions of Gesualdi and Ferrera are
necessary because each has relevant
knowledge about allegations that defendants
are jointly and severally liable for Smithtown
Trucking’s withdrawal liability based on
their alleged single entity, alter ego, single
employer, and/or joint employer relationship.
For the following reasons, the Court affirms
Magistrate Judge Lindsay’s April 23, 2015
ruling in its entirety.
I.
BACKGROUND
Smithtown Trucking is a party to a series
of collective bargaining agreements with the
Building Material Teamsters Local 282
(“Local 282”), which required Smithtown
Trucking to make contributions to the Fund.
(Amended Complaint (“Am. Compl.”) ¶ 9.)
In March 2011, Smithtown Trucking
is familiar with the operation of Smithtown
Concrete. (Letter Motion to Take
Depositions, Docket No. 45.) Defendants
also point to a declaration Gesualdi provided
to Magistrate Judge Brown in an unrelated
ERISA action about benefit fund
contributions in relation to the scope of work
performed by an alleged alter ego, single
employer, and/or joint employer relationship
in which Gesualdi stated that he is familiar
with
industry
collective
bargaining
agreements and their provisions, as well as
the type of work performed in the
construction and trucking industry. (See id. ¶
13.) Defendants argue that they should be
permitted to depose Ferrera because he has
been a Trustee of the Fund for over twenty
years, operates a ready mix concrete business
that employs drivers covered by a Local 282
collective bargaining agreement, and is
generally familiar with the construction and
trucking industry, as well as signatory
employers who perform work within the
industry. (Id. ¶ 14.)
permanently ceased to have an obligation to
contribute, thereby withdrawing from the
Fund within the meaning of Section 4203(a)
of ERISA, 29 U.S.C. § 1383(a). (Id. ¶ 10.) On
March 3, 2015, Smithtown Trucking agreed
to a Consent Judgment to be entered in favor
of the Trustees and against it in the amount of
$1,017,975.13 plus interest. (“The Consent
Judgment,” Docket No. 44.) The Consent
Judgment was approved by this Court on
March 4, 2015, and provides that its terms
“shall apply to any person or entity in the
same manner that it applies to Smithtown
Trucking to the extent such entity is found to
be liable under any theory of law for
Smithtown Trucking’s withdrawal liability
(“Jointly Liable Entity”).” (Id.) Smithtown
Concrete and Smithtown Realty agreed to
this provision and agreed that “[t]o the extent
either is not found to be a Jointly Liable
Entity, such entity shall in no way be bound
or otherwise affected by this Judgment
whatsoever.” (Id.)
Plaintiffs seek to impose withdrawal
liability on Smithtown Concrete and
Smithtown Realty in addition to Smithtown
Trucking on the theory that the three
companies are members of a single control
group (see Am. Compl. ¶ 82); or are a single
entity that share an alter ego, single
employer, and/or joint employer relationship
with each other, such that the corporate veil
should be pierced among them (id. ¶ 84). (See
also Am. Compl. at Prayer for Relief ¶ 1.)
On March 31, 2015, plaintiffs opposed
defendants’ motion to compel, arguing that
there is no basis for the depositions. Plaintiffs
contend the depositions would waste time
and harass witnesses because the only
remaining dispute in the case relates to the
defendants’ interrelationship and operation,
and Gesualdi and Ferrera’s knowledge
regarding the disputed facts is solely from
defendants or third parties.
On March 20, 2015, defendants filed a
motion to compel the depositions of plaintiffs
Gesualdi and Ferrera. Defendants argue that
based on Smithtown Trucking’s “personal
experiences” with Gesualdi, “[d]efendants
are quite certain that [he] is very
knowledgeable” about the interrelationship
of defendants because he serves as President
of Local 282, was Local 282’s “lead
negotiator”
in
collective
bargaining
negotiations with Smithtown Trucking, and
In an order issued on April 23, 2015,
Magistrate Judge Lindsay denied defendants’
motion to compel, but permitted defendants
to serve plaintiffs with a contention
interrogatory requiring them to identify the
specific statements and documents that
support their allegation that Smithtown
Concrete and Smithtown Realty are jointly
and severally liable for the withdrawal
liability of Smithtown Trucking. Magistrate
Judge Lindsay reasoned, “plaintiffs’ contend
2
Thomas E. Hoar, 900 F.2d 525).
Accordingly, this Court reviews Magistrate
Judge Lindsay’s April 23, 2015 order under
the “clearly erroneous or contrary to law”
standard.
that Trustees Ferrera and Gesualdi have no
first hand knowledge of the defendants’
interrelationship and operations other than
what was provided to them by counsel, but
neither Trustee has provided an affidavit
attesting to that fact. Nonetheless, the
plaintiffs have indicated that they relied
solely on statements made by Neil Spevack,
the principal of all three defendants,
documents produced by the defendants
during the litigation, searches of public
records and interviews with two former
employees of the defendants.”
III.
The Court finds that Magistrate Judge
Lindsay did not err in denying defendants’
motion to compel.
The Court concludes that there is no basis
to disturb Magistrate Judge Lindsay’s Order
permitting service of a contention
interrogatory instead of requiring plaintiffs
Gesualdi and Ferrera to appear for
depositions. Defendants do not provide
support for their assertion that Gesualdi and
Ferrera had personal knowledge regarding
the defendants’ interrelationship and
operation; instead, defendants make only
conclusory assertions about Gesualdi and
Ferrera’s general knowledge of the relevant
industries and familiarity with collective
bargaining agreements. It was not clearly
erroneous for Magistrate Judge Lindsay to
conclude that the facts defendants point to
regarding Gesualdi and Ferrera’s experiences
(i.e. Gesualdi’s position as President of Local
282, his participation in efforts to end a strike
at Smithtown Trucking, his familiarity with
the operation of Smithtown Concrete, and his
declaration in an unrelated case as well as
Ferrera’s experience as a Trustee of the Fund,
operation of a ready mix concrete business
that employs drivers covered by a Local 282
collective bargaining agreement, and general
familiarity with the construction and trucking
industry and signatory employers who
perform work within the industry) do not
amount to personal knowledge about the
interrelationship among these specific
defendants.
On April 27, 2015, defendants appealed
Magistrate Judge Lindsay’s Order and
reiterated the arguments made in their motion
to compel. Plaintiffs responded on June 8,
2015, and attached plaintiffs’ response to the
contention
interrogatory
ordered
by
Magistrate Judge Lindsay.
II.
DISCUSSION
STANDARD OF REVIEW
This Court may reverse a magistrate
judge’s order on a nondispositive pre-trial
matter only if the order is “clearly erroneous
or contrary to law.” 28 U.S.C.
§ 636(b)(1)(A); Fed. R. Civ. P. 72(a); see
Thomas E. Hoar, Inc. v. Sara Lee Corp., 900
F.2d 522, 525 (2d Cir. 1990) (“A
magistrate . . . may issue orders regarding
nondispositive pretrial matters. The district
court reviews such orders under the ‘clearly
erroneous or contrary to law’ standard.”).
“An order is ‘clearly erroneous’ only when
the reviewing court on the entire evidence is
left with the definite and firm conviction that
a mistake has been committed.” Weiss v. La
Suisse, 161 F. Supp. 2d 305, 321 (S.D.N.Y.
2001) (internal citation and quotation marks
omitted). “An order is ‘contrary to law’ when
it fails to apply or misapplies relevant
statutes, case law or rules of procedure.” Id.
“Discovery matters generally are considered
‘nondispositive’ of the litigation.” Id. (citing
3
Additionally, plaintiffs submitted an
extensive and extremely detailed contention
interrogatory response identifying specific
statements and documents from defendants
and third parties that support their allegation
that Smithtown Concrete and Smithtown
Realty were jointly and severally liable for
the withdrawal liability of Smithtown
Trucking.
On appeal, defendants have provided no
basis to disturb Magistrate Judge’s Lindsay’s
conclusion that depositions of Gesualdi and
Ferrera are not warranted.1 Accordingly, the
Court affirms Magistrate Judge Lindsay’s
April 23, 2015 ruling.
IV.
CONCLUSION
For the foregoing reasons, the Court
affirms Magistrate Judge Lindsay’s April 23,
2015 ruling.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated:
October 30, 2015
Central Islip, NY
***
Plaintiffs are represented by Joseph J. Vitale,
Zachary N. Leeds, and Tzvi N. Mackson of
Cohen, Weiss and Simon LLP, 330 West
42nd Street, New York, NY 10036.
Defendants are represented by Richard B.
Ziskin and Suzanne Harmon Ziskin of The
Ziskin Law Firm, LLP, 6268 Jericho
Turnpike, Suite 12A, Commack, NY 11725.
1
This Court would reach the same conclusion even
under a de novo standard of review.
4
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