Silverman et al v. Miranda et al

Filing 320

OPINION AND ORDER re: 293 MOTION for Summary Judgment filed by Herbert Pobiner, Janet Sachs, Leon Silverman, James Crowley, Paul Berkman, Louis Flacks, Union Mutual Medical Fund, 291 CROSS MOTION for Attachment of the Funds in E scrow with the Clerk of the Court filed by Herbert Pobiner, Janet Sachs, Leon Silverman, James Crowley, Paul Berkman, Louis Flacks, Union Mutual Medical Fund, 287 MOTION for Release of Funds filed by Teamster Local 210 Affiliated H ealth and Insurance Fund, 300 MOTION for Summary Judgment filed by Teamster Local 210 Affiliated Health and Insurance Fund. For the reasons set forth above: Plaintiffs' Motion for Summary Judgment on counts one and two is DENIED. Pla intiffs' state law claims for breach of contract are preempted by LMRA Section 301. Should Plaintiffs wish to amend the Amended Complaint to assert violations of the LMRA they shall do so by August 21, 2015. Defendants' Motion for Summary J udgment is GRANTED in part and DENIED in part. Specifically, Defendants' motion for summary judgment on counts one and two is denied, the motion for summary judgment as to the abandonment or waiver of the breach of contract claims is denied, and the motion for summary judgment as to preemption of the breach of contract claims under LMRA Section 301 is granted. Plaintiffs' Motion for Pre-Judgment Attachment is DENIED. Defendants' Motion for Release of Funds is GRANTED. The Clerk of Court is respectfully directed to terminate the motions (Docs. 287, 291, 293, 300). (As further set forth in this Order.) (Amended Pleadings due by 8/21/2015.) (Signed by Judge Edgardo Ramos on 7/22/2015) (kko)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
LEON SILVERMAN, JAMES CROWLEY, JANET
SACHS, HERBERT POBINER, LOUIS FLACKS,
and PAUL BERKMAN, as TRUSTEES OF THE
UNION MUTUAL MEDICAL FUND, and
UNION MUTUAL MEDICAL FUND,
Plaintiffs,
- against -

OPINION AND ORDER
06 Civ. 13222 (ER)

GEORGE MIRANDA, ROBERT BELLACH,
ANTHONY CERBONE, MARTIN SHEER, and
JOHN DOES 1-6 in their capacities as Trustees
of TEAMSTERS LOCAL 210 AFFILIATED
HEALTH AND INSURANCE FUND, and
CROSSROADS HEALTHCARE MANAGEMENT,
LLC,
Defendants.
---------------------------------------------------------------x
Ramos, D.J.:
This litigation concerns a long-fought dispute over the right to contributions made
pursuant to Collective Bargaining Agreements (“CBAs”). In 2006, Trustees of the Union
Mutual Medical Fund (the “UMMF”) and the UMMF (collectively, “Plaintiffs”) brought suit
against individuals in their capacities as Trustees of the Teamster Local 210 Affiliated Health
and Insurance Fund (the “Local 210 Fund”), the “Local 210 Fund”, and Crossroads Healthcare
Management, LLC (“Crossroads,” collectively, “Defendants”) alleging underpayment of
employer contributions in violation of the CBAs. After significant motion practice and various
rulings by the district court, on January 4, 2013, the Honorable Barbara S. Jones entered an order
that, inter alia, awarded Plaintiffs $2,460,777.33, as well as pre- and post-judgment interest (the

“Judgment”). 1 On January 31, 2013, the Local 210 Fund filed a notice of appeal with the United
States Court of Appeals for the Second Circuit, appealing the entry of the Judgment. Doc. 229.
On August 1, 2014, the Second Circuit vacated the judgment in favor of Plaintiffs, finding
Plaintiffs had failed to state claims under ERISA, and remanded to this Court to determine
whether to exercise supplemental jurisdiction over counts one and two, construed by the Second
Circuit as asserting state law breach of contract claims. Doc. 266.
Pending before this Court are cross-motions for summary judgment pursuant to Rule 56
of the Federal Rules of Civil Procedure, Defendants’ motion for release of the escrowed funds,
and Plaintiffs’ motion for prejudgment attachment of the escrowed funds pursuant to Rule 64 of
the Federal Rules of Civil Procedure.
For the reasons discussed below, Plaintiffs’ Summary Judgment motion is DENIED,
Defendants’ Summary Judgment motion is GRANTED in part and DENIED in part, Plaintiffs’
Motion for Prejudgment Attachment is DENIED, and Defendants’ Motion for Release of the
Escrowed Funds is GRANTED.
I. Background
a. Factual Background 2
Plaintiff UMMF is a collective bargaining group health plan under ERISA that was
established in 1978 to obtain and provide medical and insurance benefits to its participants and
beneficiaries, who are primarily retired union members of two unions, the Allied Trades Council
and the International Brotherhood of Teamsters Local Union 210 (the “Local 210 Union”), and
1

The instant action was reassigned to this Court on June 13, 2013. Doc. 244.

2

The following facts are taken from the parties’ statement of material facts, submitted pursuant to Local Rule 56.1,
and are undisputed unless otherwise noted. Because of this action’s extensive litigation, the Court assumes
knowledge of certain relevant facts.

2

their spouses. 3 Defendant Local 210 Fund is an employee welfare benefit plan under ERISA and
was established to provide health insurance to its members and their spouses, who are primarily
current members of the Local 210 Union. The Local 210 Fund is funded by contributions from
employers (“Contributing Employers”) who, in addition to the unions, are parties to the CBAs.
The CBAs direct Contributing Employers to contribute funds to the Local 210 Fund. 4 Under the
CBAs, the Local 210 Fund is directed to remit a portion of the contribution from the
Contributing Employers to the UMMF:
It is hereby agreed . . . the Employer shall pay to the Allied
Welfare Fund the sum of Fifty–Nine ($59.00) Dollars, each and
every week for each employee who is employed within the
bargaining unit . . . .From and out of the contributions made to the
Allied Welfare Fund as specified above, Eight Dollars per
employee per week shall be unconditionally and irrevocably
allocated and paid to the Union Mutual Medical Fund . . . for the
benefit of retired employees of the Employer and retired
employees of all other employers similarly situated and their
families. 5
In 2000, the AWF trustees filed suit against Duane Reade in the Southern District of New
York, claiming that Duane Reade, as a Contributing Employer, purportedly failed to make the
required contributions under its CBA. In 2006, the AWF and Duane Reade settled their dispute
for $825,000. The Duane Reade settlement was received by the AWF in satisfaction of Duane
Reade’s obligation under its CBA to pay contributions to the AWF. The Local 210 Fund denies

3

The Local 210 Union merged with and succeed another local, the International Brotherhood of Teamsters Local
Union 815, whose retired employees also participated in the UMMF.

4

In April 2006, the Allied Welfare Fund (“AWF”) was bifurcated and a portion of its assets (Plaintiffs contend it
was 80% while Defendants contend it was 70%) was transferred to the Local 210 Fund. Most of the Contributing
Employers that had contributed previously to the AWF began contributing to the Local 210 Fund.
5

The CBAs at issue all contain nearly identical provisions. See Fishbein v. Miranda, 670 F. Supp. 2d 264, 274 n.5
(S.D.N.Y. 2009), aff’d sub nom., Silverman v. Teamsters Local 210 Affiliated Health and Ins. Fund, 761 F.3d 277
(2d Cir. 2014) (“Miranda I”).

3

that it received all of the Duane Reade settlement proceeds from the AWF. The Local 210 Fund
does not contest that the UMMF received no monies from the Duane Reade settlement.
In January 2006, the Local 210 Fund began persuading Contributing Employers to amend
their respective CBAs to reduce the amount of the contribution remitted to the UMMF. In
March or April 2006, the CBAs were amended and the amount of the contribution per employer
per week remitted to the UMMF was reduced from eight dollars to ten cents. The UMMF was
not consulted and did not agree to the amendments. As a result of the amendments, the amount
of contributions received by the UMMF from the AWF and/or the Local 210 Fund consistently
decreased each month from approximately $1,220 in April 2006 to $449 in January 2007.
Plaintiffs filed its original Complaint against Defendants in November 2006. Doc. 1.
Plaintiffs filed an Amended Complaint in June 2008 asserting six claims, three of which were
against the Local 210 Fund seeking, inter alia, (1) an accounting of the funds received in the
Duane Reade settlement and remittance of the portion claimed by the UMMF; (2) an accounting
of all monies received by the AWF and the Local 210 Fund “for the period January 1, 2005, to
the date of judgment” because payments to the UMMF “dropped precipitously since the end of
March 2006;” and (3) an order directing the AWF and the Local 210 Fund to remit to the UMMF
all employer contributions improperly withheld from the UMMF in violation of Section 515 of
ERISA. Doc. 54 at ¶¶ 44-46, 48-50, 53. 6

6

In the Amended Complaint, Plaintiffs also brought claims against the AWF and Crossroads. The Amended
Complaint asserted three separate claims, counts four, five and six, against Crossroads only. Doc. 54. The AWF
was voluntarily dismissed from this action on July 20, 2010, Doc. 160, and Crossroads was voluntarily dismissed
from this action on April 23, 2013. Doc. 243.

4

b. Relevant Prior Decisions
i. The 2009 District Court Decision
On November 16, 2009, the district court denied Defendant Local 210 Fund’s motion to
dismiss counts one and two of the Amended Complaint, but granted Defendants’ motion to
dismiss count three. Miranda I, 670 F. Supp. 2d at 279. 7 Regarding counts one and two, which
the court construed as claims for relief under ERISA Section 502(a)(3)(B), the court made three
relevant findings. First, the court found that “Plaintiffs . . . sufficiently alleged that the relevant
CBAs are enforceable against Defendants” because Defendants “accepted their obligations under
the relevant CBAs to remit monies to Plaintiff UMMF in accordance with the terms of these
agreements . . . and that Defendants . . . intended to be bound by these agreements.” Id. Second,
the court found that Plaintiffs adequately alleged that the UMMF met the three elements required
to assert third party beneficiary status and that “[t]he UMMF is an intended third-party
beneficiary under the CBAs[:]”
First, the requirement of valid and binding contracts between other
parties is satisfied since Plaintiffs allege that the Unions entered
into valid CBAs with the various Contributing Employers.
Second, Plaintiffs establish that the contract was intended for
Plaintiffs’ benefit. Third, the Plaintiffs establish that benefit to
them under the CBAs is immediate rather than incidental, since
Plaintiffs allege that the CBAs provide that ‘[f]rom and out of the
contributions made to the Allied Welfare Fund as specified above,
Eight Dollars per employee per week shall be unconditionally and
irrevocably allocated and paid to [Plaintiff UMMF].’
Id. at 275 (internal citations omitted). Third, the court found that the relief requested by

7

The court dismissed count three finding that the Local 210 Fund was not an “employer” under ERISA § 515. Id. at
275. On February 22, 2007, then-Defendant AWF filed a separate motion to dismiss under Rules 12(b)(1) and (6).
Doc. 22. In a separate order dated April 16, 2010, the district court denied AWF’s motion to dismiss Plaintiffs’ first
and second counts, but dismissed the third count. Doc. 118. The court extended all findings from the November 16,
2009 Order to AWF. Id.

5

Plaintiffs, accounting and restitution, was permitted equitable relief under ERISA Section
502(a)(3)(B). Id. at 276. 8
ii. The 2011 District Court Decision
On April 12, 2011, the district court granted Plaintiffs’ motion for partial summary
judgment on counts one and two and denied Defendants’ motion for summary judgment in its
entirety. Fishbein v. Miranda, 785 F. Supp. 2d 375, 393 (S.D.N.Y. 2011), vacated sub nom.,
Silverman v. Teamsters Local 210 Affiliated Health and Ins. Fund, 761 F.3d 277 (2d Cir. 2014)
(“Miranda II”). 9 The court characterized Defendants’ summary judgment motion as “largely
rehash[ing] arguments the Court already considered and rejected” and reaffirmed the court’s
2009 Order with three relevant findings. Id. at 384.
First, the court reaffirmed its earlier 2009 Order, finding “that Plaintiffs have standing to
enforce the CBAs and seek an accounting of monies received pursuant to the Duane Reade
settlement because UMMF is an expressly named third-party beneficiary in the CBAs, including
the one with Duane Reade.” Id. at 384. Second, the court “found Plaintiffs may enforce the
CBAs against the Local 210 Fund because it accepted the CBAs and acted upon them.” Id. at
385. Third, the court found that Plaintiffs’ requested relief constitute “other” forms of
“appropriate equitable relief” under ERISA § 502(a)(3)(B). Id. The court then held that “[i]n
light of the Court’s legal findings and the lack of any disputed issues of material fact regarding

8

In response to Defendant Local 210 Fund’s motion for reconsideration, by Order dated April 9, 2010, the court
affirmed its November 16, 2009 decision. Doc. 117.

9

Plaintiffs moved for summary judgment on counts one, two, four, five, and six and on former-Defendant
Crossroads’ counterclaims. Id. at 378. The court granted Plaintiffs’ summary judgment motion on counts one and
two. Id. at 393. The court denied Plaintiffs’ summary judgment motion on counts four and five, dismissing those
counts because Crossroads was not a fiduciary under ERISA, and on count six. Id. at 389-90. The court granted in
part and denied in part Plaintiffs’ motion to dismiss Crossroads’ counterclaims. Id. at 393.

6

Plaintiffs’ first two counts, Plaintiffs are entitled to summary judgment on both counts.” Id.
The court ordered the Local 210 Fund to provide: “(1) an accounting of all proceeds received
from the Duane Reade settlement and (2) an accounting of all monies received from contributing
employers from January 1, 2005 to the present.” Id. 10
iii. The 2013 District Court Decision
On January 4, 2013, the district court granted in part and denied in part Plaintiffs’ motion
for sum certain and summary judgment as to amount owed and denied Defendants’ motion for
partial summary judgment seeking a determination that a lesser amount was owed. Silverman v.
Miranda, 918 F. Supp. 2d 200, 206 (S.D.N.Y. 2013), vacated sub nom., Silverman v. Teamsters
Local 210 Affiliated Health and Ins. Fund, 761 F.3d 277 (2d Cir. 2014) (“Miranda III”). The
court awarded judgment in favor of Plaintiffs in the amount of $2,460,777.33 plus interest. Id. at
221. Plaintiffs were entitled to recover (1) the UMMF liability, amounting to $1,909,736.26 plus
interest, id. at 212; (2) alleged overpayment amounting to $73,285.36 plus interest, id. at 213; (3)
eighty percent of the funds, $89,491.53, from the Duane Reade settlement, id. at 214; (4)
contributions from the Manhattan Drug Company (“MDC”), a Contributing Employer under its
CBA, amounting to $103,302.64 plus interest, id. at 216; and (5) contributions from CBAs
containing automatic renewals amounting to $284,961.54, id. at 219. The court also briefly
addressed the impact of the court’s prior rulings finding that “[t]his Court has already ruled on
the issue of Defendants’ contractual liability. . . .[and] it forecloses any argument that Defendants
never ‘accepted’ the CBA terms.” Id. at 211.

10

In response to Defendants’ motion for reconsideration, by order dated June 27, 2011, the court affirmed the
court’s 2011 decision regarding the parties’ summary judgment motions but altered the dates for Defendants to
submit its accounting. Doc. 181.

7

iv. The Second Circuit Decision
On August 1, 2014, the Second Circuit vacated the judgment in favor of the UMMF fund
and remanded the action. Silverman v. Teamsters Local 210 Affiliated Health and Ins. Fund, 761
F.3d 277, 289 (2d Cir. 2014) (“Silverman”). The Second Circuit affirmed the district court’s
dismissal of count three because “the [Local] 210 Fund was not obligated to remit funds to the
UMM Fund ‘in the interest of’ an employer, [therefore] the Section 515 claim was properly
dismissed.” Id. at 285-86 (“the CBAs here contain no provision obligating the employer to pay
the UMM Fund, or an assumption by the 210 Fund of such an obligation. . . . under no reading of
the CBAs (pre-amendment or post-amendment) is the employer obligated to contribute [to] any
defendant.”) (emphasis original). In regards to counts one and two, the Second Circuit found the
district court erred in granting summary judgment in favor of Plaintiffs under ERISA because
“the terms of each CBA were not terms of an ERISA plan.” Id. at 280. The Second Circuit
explained that “[a]lthough the UMM Fund has failed to state a claim under ERISA, the first two
claims in the Amended Complaint can be construed as state law breach-of-contract claims.” Id
at 281; see also id. at 288 (finding that counts one and two “me[]t the pleading requirements for
state law breach-of-contract claims.”). 11
Instead of reversing and directing dismissal of all the UMM Fund’s claims, the Circuit
Court vacated the award to the UMMF and remanded for the district court “to consider whether
to exercise supplemental jurisdiction over the first two claims, construed as alleging state law

11

While the district court construed counts one and two as claims under ERISA, the Amended Complaint did not
state a legal basis for the first or second counts. The Second Circuit found it was unclear under the pleadings
“whether the duty of the 210 Fund to remit funds and provide an accounting was premised on state contract law, a
federal or state statute, or something else.” Id. 282-83.

8

breach of contract.” Id. at 288. 12 While the Second Circuit acknowledged that “[f]ederal courts
will normally decline to retain jurisdiction in such circumstances,” the court suggested that, “in
this case, it may be that discretion will be exercised in favor of retaining jurisdiction, given that
most of the relevant contract law issues have already been briefed by the parties and decided in a
trio of opinions” but took “no position on whether those issues were correctly decided” and
explained it had “no occasion to consider the calculation of the award, or the denial of attorney’s
fees.” Id. The Circuit also noted that “[t]he 210 Fund may enjoy additional defenses to state law
claims for breach of contract, including ERISA preemption” but “express[ed] no view on the
merits of such a defense.” Id. at 288 n.4.
Circuit Judge Calabresi concurred with the majority opinion and affirmed the dismissal of
count three. Id. at 289. In regards to counts one and two, Judge Calabresi dissented because the
district court’s “factual finding” that the language and circumstances of the CBAs made them an
ERISA plan “was not appealed” but “note[d] that if the district court were to find a state law
contract breach for the same reasons that it found a violation of ERISA, then the district court
would likely reach the same result as before.” Id.
c. The Instant Motions
On October 9, 2014, a pre-motion conference was held before this Court, at which
Defendants were granted leave to file its motion for release of the escrowed funds, Plaintiffs
were granted leave to file its motion for prejudgment attachment of the escrowed funds, and both
parties were granted leave to file cross-motions for summary judgment.

12

The Circuit found that “the Amended Complaint recites supplemental jurisdiction as a proper basis for subject
matter jurisdiction” “because a breach of contract claim was pleaded against a defendant who was later voluntarily
dismissed” Id.

9

II. Legal Standard
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact.” FED. R. CIV. P. 56(a). “An issue of fact is ‘genuine’ if the
evidence is such that a reasonable jury could return a verdict for the non-moving party.” Senno
v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454, 467 (S.D.N.Y. 2011) (citing SCR Joint
Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). A fact is “material” if it might
affect the outcome of the litigation under the governing law. Id. The party moving for summary
judgment is first responsible for demonstrating the absence of any genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its burden, “the
nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue
of fact for trial in order to avoid summary judgment.” Saenger v. Montefiore Med. Ctr., 706 F.
Supp. 2d 494, 504 (S.D.N.Y. 2010) (internal quotation marks omitted) (quoting Jaramillo v.
Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)).
In deciding a motion for summary judgment, the Court must “‘construe the facts in the
light most favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.’” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.
2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)). However,
in opposing a motion for summary judgment, the non-moving party may not rely on unsupported
assertions, conjecture or surmise. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14,
18 (2d Cir. 1995). The non-moving party must do more than show that there is “some
metaphysical doubt as to the material facts.” McClellan v. Smith, 439 F.3d 137, 144 (2d Cir.
2006) (internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)). When both parties move for summary judgment, “neither side
10

is barred from asserting that there are issues of fact, sufficient to prevent the entry of judgment,
as a matter of law, against it.” Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.
1993). “[T]he court must evaluate each party’s motion on its own merits, taking care in each
instance to draw all reasonable inferences against the party whose motion is under
consideration.” Schwabenbauer v. Bd. of Ed. of City Sch. Dist. of City of Olean, 667 F.2d 305,
314 (2d Cir. 1981). To defeat a motion for summary judgment, “the non-moving party must set
forth significant, probative evidence on which a reasonable fact-finder could decide in its favor.”
Senno, 812 F. Supp. 2d at 467-68 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 256-57
(1986)).
III. Discussion
a. Supplemental Jurisdiction
The decision to exercise supplemental jurisdiction over state law claims once the claims
over which the district court had original jurisdiction have been dismissed “is within the sound
discretion of the district court.” Lundy v. Catholic Health Sys. of Long Island, 711 F.3d 106, 117
(2d Cir. 2013). “When, as in this case, a federal court dismisses all claims over which it had
original jurisdiction, it must reassess its jurisdiction over the case by considering several related
factors—judicial economy, convenience, fairness, and comity.” Motorola Credit Corp. v. Uzan,
388 F.3d 39, 56 (2d Cir. 2004) (citing Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d
1182, 1191 (2d Cir. 1996)). The instant action has been pending in the Southern District of New
York since 2006. The court has decided multiple dispositive motions and issued a final
judgment in this case. See id. (“there is a particularly strong case for retaining jurisdiction
because the Court has not only spent considerable time dealing with the legal issues and
becoming fully conversant with the facts but also has” resolved all factual disputes). Moreover,
11

the state law claims currently at issue are “analytically identical” to the ERISA claims the court
previously decided. See Lundy, 711 F.3d at 118 (explaining that the Second Circuit “ha[s]
upheld the exercise of supplemental jurisdiction in situations when as here the ‘state law claims
are analytically identical’ to the federal claims”) (citing Benn v. City of New York, 482 Fed.
App’x 637, 639 (2d Cir. 2012)). As such, these factors support the Court’s exercising of
supplemental jurisdiction.
Additionally, the parties do not oppose the Court’s exercise of supplemental jurisdiction
over the remaining causes of action and, as discussed above, the Second Circuit expressly
encouraged the district court to retain jurisdiction due to its familiarity with the instant action.
Silverman, 761 F.3d at 288. This Court will therefore exercise supplemental jurisdiction over the
remaining causes of action.
b. Construing Counts One and Two as Breach of Contract Claims
The Second Circuit held that “[a]lthough the UMM Fund has failed to state a claim under
ERISA, the first two claims in the Amended Complaint can be construed as state law breach-ofcontract claims.” Id. at 281. “Under New York law, a breach of contract claim requires proof of
(1) an agreement, (2) adequate performance by the plaintiff, (3) breach by the defendant, and (4)
damages.” Fischer & Mandell, LLP v. Citibank, N.A., 632 F.3d 793, 799 (2d Cir. 2011). As
suggested by the Second Circuit, Plaintiffs’ allegations sufficiently allege a claim for breach of
contract. See Silverman, 761 F.3d at 281. Plaintiffs allege that the Local 210 Fund breached a
valid contract, the CBAs, by failing to remit contributions owed to the UMMF under the CBAs,
including a portion of the Duane Reade settlement for back contributions to the UMMF, and, as a
result of the Local 210 Fund’s breach, the UMMF was damaged. See Pls.’ Summ. J. Mem. at 17.
The UMMF also contends that it has standing to sue to enforce the CBAs as an intended third
12

party beneficiary of the CBAs. Id. Defendants do not contest the fact that they did not remit all
contributions owed to the UMMF under the original CBAs or the Duane Reade settlement. See
Defs.’ Summ. J. Mem. at 19-20; Defs.’ Opp’n Summ. J. Mem. at 13-14. Defendants instead
argue that because the UMMF is not an intended third party beneficiary whose consent is
required to amend the CBAs, the CBAs were properly amended and the original CBAs were not
breached. 13 Id. Defendants’ argument has been consistently rejected by the district court. See
Miranda I, 670 F. Supp. 2d at 275; Doc. 117 (denying motion for reconsideration of Miranda I);
Miranda II, 785 F. Supp. 2d at 384.
“Under the test outlined in the Restatement (Second) of Contracts and followed by New
York courts, a plaintiff claiming third party beneficiary status must allege: (1) the existence of a
valid and binding contract between other parties, (2) that the contract was intended for his benefit
and (3) that the benefit to him is sufficiently immediate, rather than incidental, to indicate the
assumption by the contracting parties of a duty to compensate him if the benefit is lost.”
Miranda I, 670 F. Supp. 2d at 274 (citing State of Cal. Publ. Employees’ Ret. Sys. v. Shearman &
Sterling, 741 N.E.2d 101, 104, 95 N.Y.2d 427, 435 (2000); Levin v. Tiber Holding Corp., 277
F.3d 243, 248 (2d Cir. 2002)); see also Bayerische Landesbank, New York Branch v. Aladdin

13

Defendants observe that the district court relied “solely on a footnote” in a reported case for the proposition that
intended third party beneficiaries must consent to an amendment modifying its benefits under the CBAs. Defs.’
Summ. J. Mem. at 22. In fact, the footnote in question correctly states the law and in turn cites to a treatise on
contracts for the settled rule that “a promisor and promisee are not free to modify or discharge the promisor’s duty to
an intended third-party beneficiary of the contract after the beneficiary’s rights have vested.” Trustees of Four Joint
Boards Health and Welfare and Pension Funds v. Penn Plastics, Inc., 864 F. Supp. 342, 347 n.6 (S.D.N.Y. 1994)
(citing Farnsworth, Contracts § 10.8, 768–69 (collecting authorities)). Moreover, Defendants’ argument that if an
intended third party beneficiaries’ consent is required to modify the CBAs, then the Local 210 Fund’s consent would
also have been required to modify the amount received by the Local 210 Fund under the amended CBAs, Defs.’
Summ. J. Mem. at 23-24, fails to recognize that if the UMMF’s consent was required but was not received, the
amendments increasing the contributions to the Local 210 Fund, by reducing the amount remitted to the UMMF,
were ineffective.

13

Capital Mgmt. LLC, 692 F.3d 42, 52 (2d Cir. 2012) (“Under New York law, a third party may
enforce a contract when recognition of a right to performance in the beneficiary is appropriate to
effectuate the intention of the parties and . . . the circumstances indicate that the promisee intends
to give the beneficiary the benefit of the promised performance. The contract must ‘clearly
evidence’ an intent by the parties to permit enforcement by the third party, such that the benefit
to the third party was sufficiently immediate, rather than incidental, to indicate the assumption by
the contracting parties of a duty to compensate [the third party] if the benefit [was] lost.”)
(alterations in original). The district court previously found, and affirmed, that the UMMF is an
intended third party beneficiary of the CBAs. See Miranda I, 670 F. Supp. 2d at 275; Miranda
II, 785 F. Supp. 2d at 384. 14 However, Defendants now contend that the Second Circuit’s
finding—that “under no reading of the CBAs (pre-amendment or post-amendment) is the
employer obligated to contribute any money to the UMM Fund,” Silverman, 761 F.3d at 286
(emphasis original)—“inescapably” leads to the conclusion that the parties to the CBAs, the
Contributing Employers and the unions, never intended to compensate the UMMF for any loss
under the CBAs, or for the UMMF to have the right to enforce the CBAs. Defs.’ Summ. J.
Mem. at 20-21; see also Defs.’ Opp’n Summ. J. Mem. at 14. According to Defendants, based on
14

Defendants contend that “when the Second Circuit vacated the district court’s judgment, it also extinguished the
precedential value of any prior district court decisions on the third party beneficiary arguments.” Defs.’ R. Summ. J.
Mem. at 6 (citing Russman v. Bd. of Educ., 260 F.3d 114, 121 (2d Cir. 2001)). While the Second Circuit vacated the
2011 and 2013 summary judgment decisions, the 2009 decision was upheld. See Silverman, 761 F.3d 277.
Moreover, the Second Circuit expressly stated that “rather than reverse and direct dismissal of all the UMM Fund’s
claims, we vacate the award to the UMM Fund and remand to the district court to consider whether to exercise
supplemental jurisdiction over the first two claims, construed as alleging state law breach of contract. . . .it may be
that discretion will be exercised in favor of retaining jurisdiction, given that most of the relevant contract law issues
have already been briefed by the parties and decided in a trio of opinions.” Silverman, 761 F.3d at 288 (emphasis
added). While a vacated decision may no longer bind this Court, the earlier district court decisions may be treated
as persuasive authority. See Brown v. Kelly, 609 F.3d 467, 476-77 (2d Cir. 2010) (explaining that while a prior
decision was vacated and is, therefore “not technically binding” on the court, “[w]e nonetheless treat [the decision]
as persuasive authority.”). Accordingly, this Court treats the relevant portions of the district court’s earlier decisions
as persuasive authority.

14

this finding and the Second Circuit’s decision in Bayerische Landesbank, the UMMF cannot be
an intended third party beneficiary of the CBAs. Id. Defendants’ argument is without merit.
The Second Circuit’s discussion regarding the Contributing Employer’s obligation under
the CBAs occurred in the context of evaluating whether Plaintiffs stated a claim under Section
515 of ERISA in count three. See Silverman, 761 F.3d at 285. Plaintiffs contend that the Local
210 Fund assumed the employer’s contribution obligation under the CBA and therefore violated
Section 515. In rejecting this argument, the Circuit Court explained that the Contributing
Employers were not obligated to contribute money to the UMMF under the CBAs but recognized
that
[t]he CBAs do provide that ‘[f]rom and out of the contributions
made’ to the 210 Fund, a portion ‘shall be unconditionally and
irrevocably allocated and paid to the Union Mutual Medical Fund’
[and] [w]hether this provision contractually obligated the 210
Fund, a non-signatory to the CBAs, to remit these funds to the
UMM Fund is a question of contract law heavily litigated in the
district court. A related contract question is whether, under
relevant state law, the UMM Fund was a third-party beneficiary . .
..
Id. at 286. While the Second Circuit noted that these contractual questions existed and were
heavily litigated in the district court, the Second Circuit did not decide or suggest that its findings
impacted the district court’s previous decisions. In the instant action, Plaintiffs do not seek to
enforce the CBAs against the Contributing Employers but rather against the Local 210
Fund, which can be held accountable under the CBAs because, while not a signatory,
Defendants “accepted their obligations under the relevant CBAs” “to accept funds from
Contributing Employers and then remit a certain percentage of such funds to Plaintiff UMMF.”
Miranda I, 670 F. Supp. 2d at 273-74. Even assuming Plaintiffs are not entitled to bring an
action against the Contributing Employers for lost contributions, the Second Circuit’s decision
15

does not alter the district court’s earlier findings that the UMMF may bring this action to enforce
the CBAs against the Local 210 Fund. 15 Therefore, counts one and two state claims for breach
of contract under New York law. Plaintiffs, however, are not entitled to summary judgment on
counts one and two because, as discussed infra, while they have not abandoned or waived their
claims for state law breach of contract, the claims are preempted under the Labor Management
Relations Act (“LMRA”) Section 301.
c. Abandonment or Waiver of Plaintiffs’ Breach of Contract Claims
To support a finding of waiver, Defendants must show that Plaintiffs had a clear,
unmistakable, and unambiguous intent to relinquish their legal rights. Faiveley Transp. USA,
Inc. v. Wabtec Corp., 758 F. Supp. 2d 211, 217 (S.D.N.Y. 2010). To support a finding of
abandonment, Defendants must show that Plaintiffs either (1) raised a claim and failed to pursue
that claim, or (2) failed to respond to an argument raised by Defendants. See Cowan v. City of
Mount Vernon, No. 12 Civ. 6881 (KMK), 2015 WL 1400088, at *15 (S.D.N.Y. March 27, 2015)
(“Federal courts may deem a claim abandoned when a party moves for summary judgment on
one ground and the party opposing summary judgment fails to address the argument in any
way.”); Schulman v. Herbert E. Nass & Assoc. SEP IRA Plan, No. 10 Civ. 9613 (RA), 2013 WL
4860119, at *3 n.5 (S.D.N.Y. Sept. 11, 2013). Defendants do not articulate separate arguments

15

Defendants reiterate the same argument, previously rejected by the district court, that the UMMF is at most an
incidental beneficiary, again relying on Illustration 3 of the Restatement (Second) of Contracts § 302 and two circuit
court decisions. Defs.’ Opp’n Summ. J. Mem. at 17-18 (citing In re: Publishers Consortium, Inc., 345 Fed. App’x
710, 712 (2d Cir. 2009); Public Serv. Co. of New Hampshire v. Hudson Light and Power Dept., 938 F.2d 338, 343
n.13 (1st Cir. 1991)); but see Septembertide Publishing, B.V. v. Stein and Day, Inc., 884 F.2d 675, 679 (2d
Cir. 1989) (finding the plaintiff “plainly is an intended beneficiary of . . . [the] Agreement between
[defendants]” despite the fact that the Agreement did not call for payment directly to the plaintiff).
However, the Illustration and the circuit court decisions involve situations concerning a debt. Because this case does
not concern a debt, the Illustration and the circuit courts’ decisions are inapposite. See Miranda, 785 F. Supp. 2d at
384 n.12.

16

for abandonment and waiver.
Defendants argue that the fact that Plaintiffs characterized counts one and two as arising
exclusively under ERISA, and requested equitable relief available under ERISA, and not
monetary damages available for breach of contract, shows they never intended to raise breach of
contract claims against Defendants, and therefore, waived or abandoned their claims. Defs.’
Summ. J. Mem. at 8-10; Defs.’ Opp’n Summ. J. Mem. at 3-5. Plaintiffs contend that waiver and
abandonment are inapplicable because neither party raised or contested the UMMF’s ability to
seek relief based on New York state law. Pls.’ Opp’n Summ. J. Mem. at 1. Defendants point to
two specific pieces of evidence as support. First, Defendants contend that their memorandum in
support of their motion to dismiss characterized Plaintiffs’ claims as being based in contract and
that Plaintiffs opposed this characterization, reiterating that their claims were brought under
ERISA. Defs.’ Summ. J. Mem. at 8-10; Defs.’ Opp’n Summ. J. Mem. at 3-5. Second,
Defendants point to Plaintiffs’ request for prejudgment interest in the amount of 5.8%, 16 and not
9%—the statutory rate of prejudgment interest for breach of contract claims—because neither
ERISA nor federal law prescribes a rate of interest based on claims brought under ERISA
Section 502(a)(3)(B). Defs.’ Summ. J. Mem. at 10; Defs.’ Opp’n Summ. J. Mem. at 5. Despite
Defendants’ contentions, Defendants establish neither abandonment nor waiver as a matter of
law.
Defendants fail to show that Plaintiffs had a clear, unmistakable, and unambiguous intent
to relinquish their legal rights to bring claims for breach of contract. See Beth Israel Med. Ctr. v.
Horizon Blue Cross and Blue Shield of New Jersey, Inc., 448 F.3d 573, 585 (2d Cir. 2006)

16

5.8% interest was allegedly equal to the rate the UMMF would have received if it obtained the correct
contribution from the Local 210 Fund. Defs.’ Summ. J. Mem. at 10; Defs.’ Opp’n Summ. J. Mem. at 5.

17

(“waiver of a contract right must be proved to be intentional, the defense of waiver requires a
clear manifestation of an intent by plaintiff to relinquish her known right and mere silence,
oversight or thoughtlessness in failing to object to a breach of the contract will not support a
finding of waiver.”). Defendants do not provide sufficient evidence of Plaintiffs’ “clear
manifestation of an intent” to relinquish its rights under the CBAs. To the contrary, Plaintiffs
objected to Defendants’ actions and have vigorously prosecuted this litigation. While Plaintiffs
originally alleged causes of action under ERISA, “it is well established that the failure in a
complaint to cite a statute, or cite the correct one, in no way affects the merits of a claim.” See
Inclan v. New York Hospitality Grp., Inc., No. 12 Civ. 4498 (NRB), 2015 WL 1399599, at *7
(S.D.N.Y. Mar. 26, 2015) (citing Albert v. Carovano, 851 F.2d 561, 571 n.3 (2d Cir. 1988) (en
banc)). In Johnson v. City of Shelby, Mississippi, 135 S.Ct 346, 346-47 (2014) (per curiam), the
Supreme Court reversed the dismissal on summary judgment of a § 1983 claim for plaintiffs’
“failure to invoke [§ 1983] in their complaint” explaining that the “[f]ederal pleading rules call
for a short and plain statement of the claim showing that the pleader is entitled to relief; [they do]
not countenance dismissal of a complaint for imperfect statement of the legal theory supporting
the claim asserted.” Here, like in Johnson, Plaintiffs “stated simply, concisely, and directly
events that, they alleged, entitled them to damages.” Id. at 347.
Additionally, Defendants do not, nor can they, argue that they were somehow surprised
or prejudiced by construing Plaintiffs’ claims as breach of contract claims rather than claims
brought under ERISA. See Inclan, 2015 WL 1399599, at *7 (rejecting the defendant’s argument
that summary judgment on one of plaintiff’s claims was “inappropriate because such claims were
not pleaded” where the amended complaint “adequately describes the substance of the plaintiffs’
. . . claims” and where “defendants do not contend that they were prejudiced in any particular
18

way by plaintiffs’ failure to invoke the [statute] specifically in the Amended Complaint”).
Moreover, the Honorable Barbara S. Jones, in the instant action, previously rejected this
argument—that Plaintiffs “impermissibl[e] [attempted] to raise a new claim [in its summary
judgment motion] not originally advanced in this litigation”—because while “a failure to assert a
claim until the last minute will inevitably prejudice the defendant,” “a complaint need not
correctly plead every legal theory supporting [a] claim.” Miranda III, 918 F. Supp. 2d at 208
(citing Beckman v. U.S. Postal Serv., 79 F. Supp. 2d 394, 407 (S.D.N.Y. 2000)). “Where the
allegations of fact made in the complaint and the evidence upon which [the] plaintiffs rely are
completely descriptive of the transactions and of the roles of the actors in them as well as the
evidence and allegations relevant to a determination of the claim at issue, it cannot be said that a
defendant was not properly on notice.” Id. (citing Marbury Mgmt., Inc. v. Kohn, 629 F.2d 705,
711 (2d Cir. 1980)) (alteration original). Here, “there is no prejudice or lack of fair notice to
Defendants” because “Plaintiffs’ theory . . . stems from the same arguments, factual allegations,
authority, and evidence on which they have relied throughout this litigation,.” Id. at 208-09.
The cases relied on by Defendants are inapposite because the plaintiffs in those cases,
unlike here, failed to pursue claims that were explicitly raised in their respective complaints. For
example, in Schulman, 2013 WL 4860119, at *3, the plaintiff and the defendant filed summary
judgment papers only addressing the plaintiff’s claims under ERISA. However, count three of
the complaint specifically alleged that Defendants also breached its contract under the Plan. Id.
at *3 n.5. The Schulman court found that “[t]o the extent Schulman seeks to bring a breach of
contract claim, ‘it appears that plaintiff has abandoned this claim, because it is not raised
elsewhere in the record.’” Id. (quoting Singleton v. City of Newburgh, 1 F. Supp. 2d 306, 312
(S.D.N.Y. 1998)). Here, unlike in Schulman, while Plaintiffs alleged facts to support a breach of
19

contract claim, see supra Section III.b, Plaintiffs did not explicitly assert a claim for breach of
contract and then fail to raise it elsewhere during the litigation. 17
Defendants’ reliance on its purported characterization of counts one and two as claims for
breach of contract is also misplaced. Defendants’ own memorandum in support of its motion to
dismiss explicitly identifies Plaintiffs’ first and second counts as being brought “under ERISA.”
See Doc. 72 at 2-3, 22; see also Miranda II, 785 F. Supp. 2d at 383 (explaining that counts one
and two were “based solely on alleged violations of the CBAs, under ERISA § 502(a)(3)(B)”).
Moreover, the sentence identified by Defendants as supporting its argument for abandonment,
read in context, suggests only that Defendants sought dismissal of an ERISA claim, not state law
contract claim. See Doc. 72 at 23 (“In contrast to the equitable remedies available under Section
502(a)(3)(B), such as a constructive trust or an equitable lien, Plaintiffs seek a monetary award
from the Defendant Funds based on the Plaintiffs’ alleged contractual rights under the CBAs.
Such relief is not available under Section 502(a)(3)(B).”) (internal citations omitted). Plaintiffs
contend that “the question of whether the UMMF could recover under New York state law for
breach of contract, as opposed to ERISA, was not raised by either party” and that “[t]he UMMF
merely argued that under ERISA, it was entitled to, and was in fact, pursuing equitable relief in
the form of an accounting and restitution.” Pls.’ Opp’n Summ. J. Mem. at 3, 5. Plaintiffs’

17

The two other cases cited by Defendants are similarly inapposite. In Singleton, 1 F. Supp. 2d at 312, the court
determined that the plaintiff abandoned his/her claim because, while the claim is alleged in the complaint, “plaintiff
does not raise[] [it] elsewhere in the record” and the plaintiff’s “mere reliance on conclusory allegations contained in
the Complaint” failed to set forth facts showing that a genuine issue for trial exists to withstand a motion for
summary judgment. In Harte v. Ocwen Fin. Corp., No. 13 Civ. 5410 (MKB), 2014 WL 4677120, at *4 n.7
(E.D.N.Y Sept. 19, 2014), the court found while the complaint alleged that the defendant breached “various
contractual agreements,” the plaintiff’s opposition to the defendant’s motion to dismiss argued only that the
defendant breached one specific contract. Therefore, the Harte court found the plaintiff abandoned “any breach of
contract claim based on any other of the ‘various contractual agreements’” alleged in the complaint. Id. Here,
Plaintiffs did not explicitly raise and then fail to address its breach of contract claims.

20

response to Defendants’ motion to dismiss argued that Defendants “ignor[ed] the basis of
Plaintiffs’ claims . . . [and] mischaracterize[d] the remedies sought by Plaintiffs as ‘legal’ to
evade the reach of Section 502(a)(3)(B).” Doc. 82 at 19. Plaintiffs’ response nowhere
establishes their intention to relinquish their rights or abandon their claims for breach of contract.
Defendants have not established that Plaintiffs abandoned or waived their breach of contract
claims as a matter of law.
d. Preemption of Plaintiffs’ Breach of Contract Claims under LMRA Section
301
While Plaintiffs did not abandon or waive their breach of contract claims, they must
nonetheless be dismissed as being preempted by the LMRA. LMRA Section 301 provides, in
pertinent part, that “[s]uits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting commerce . . . may be brought in
any district court of the United States having jurisdiction of the parties.” 29 U.S.C. § 185(a).
The Supreme Court has held that this provision completely preempts “any state cause of action”
for such violations, Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S.
Cal., 463 U.S. 1, 23 (1983) (citing Avco Corp. v. Aero Lodge No. 735, Intern. Ass’n of
Machinists and Aerospace Workers, 390 U.S. 557, 560 (1968)), because Section 301 requires
that “the relationships created by [a collective-bargaining] agreement be defined by application
of an evolving federal common law grounded in national labor policy.” Allis-Chalmers Corp. v.
Lueck, 471 U.S. 202, 211 (1985) (internal quotations and citations omitted). The Supreme Court
has described various situations where claims are preempted by Section 301:
claims that are ‘founded directly on the rights created by
collective-bargaining agreements,’ Caterpillar Inc. v. Williams,
482 U.S. 386, 395 (1987); claims that ‘require[ ] the interpretation
of a collective-bargaining agreement.’ Lingle v. Norge Div. of
Magic Chef, Inc., 486 U.S. 399, 412 (1988); claims that are
21

‘substantially dependent on analysis of a collective-bargaining
agreement,’ Int’l Brotherhood of Elec. Workers v. Hechler, 481
U.S. 851, 859 n.3 (1987); claims that are ‘inextricably intertwined
with consideration of the terms of the labor contract,’ Allis–
Chalmers Corp., 471 U.S. at 213; and claims that assert rights
‘derive[d] from the contract,’ id. at 217.
Williams v. Comcast Cablevision of New Haven, Inc., 322 F. Supp. 2d 177, 182 (D. Conn. 2004).
However, Section 301 does not preempt “every dispute concerning employment, or
tangentially involving a provision of a collective-bargaining agreement.” Allis–Chalmers Corp.,
471 U.S. at 211. “[I]f a claim can be resolved without construing the terms of the CBA, the state
claim may proceed” and the “fact that a CBA must be consulted or referred to . . . does not
necessarily lead to preempt[ion].” Olivieri v. Waldbaum, Inc., No. 12 Civ. 1195 (SLT) (MDG),
2013 WL 5507141, at *6 (E.D.N.Y. Sept. 30, 2013). “‘[I]t is the legal character of a claim, as
‘independent’ of rights under the collective-bargaining agreement’—and not whether a grievance
arising from the same set of facts could be pursued under the agreement—‘that decides whether
a state cause of action may go forward.’” Williams, 322 F. Supp. 2d at 182 (alteration in
original) (quoting Livadas v. Bradshaw, 512 U.S. 107, 123–24 (1994)). “[W]hen resolution of a
state-law claim is substantially dependent upon analysis of the terms of an agreement made
between the parties in a labor contract, that claim must either be treated as a § 301 claim, or [be]
dismissed as pre-empted by federal labor-contract law.” Vera v. Saks & Co., 335 F.3d 109, 114
(2d Cir. 2003) (per curiam).
“To determine whether § 301 preemption applies, the court begins with consideration of
the elements of plaintiff’s stated claim” and then “considers whether adjudication of any element
of that claim requires interpretation of the parties’ CBA.” Olivieri, 2013 WL 5507141, at *6
(citing Foy v. Pratt & Whitney Grp., 127 F.3d 229, 233 (2d Cir. 1997)). As explained supra,
Plaintiffs allege that the Local 210 Fund breached the CBAs by failing to remit contributions
22

owed to the UMMF and that the UMMF has standing as an intended third party beneficiary to
bring the instant action for breach of the CBAs. “Under New York law, a breach of contract
claim requires proof of (1) an agreement, (2) adequate performance by the plaintiff, (3) breach
by the defendant, and (4) damages.” Fischer, 632 F.3d at 799 (internal citations omitted).
“Under the test outlined in the Restatement (Second) of Contracts and followed by New York
courts, a plaintiff claiming third party beneficiary status must allege: (1) the existence of a valid
and binding contract between other parties, (2) that the contract was intended for his benefit, and
(3) that the benefit to him is sufficiently immediate, rather than incidental, to indicate the
assumption by the contracting parties of a duty to compensate him if the benefit is lost.”
Miranda I, 670 F. Supp. 2d at 274.
Plaintiffs’ claim is ultimately one for breach of the CBAs by the Local 210 Fund for
failure to remit funds to the UMMF. This is exactly the type of claim Section 301 is meant to
preempt—the rights allegedly violated derive solely from the CBA, not any independent source
of state law, and, because the cause of action is for the breach of the CBAs, Plaintiffs’ claim for
breach of contract requires interpretation, not mere consultation, of the CBAs. See Lingle, 486
U.S. at 410 n.10 (“Section 301 governs claims founded directly on the rights created by
collective-bargaining agreements, and also claims ‘substantially dependent on analysis of
collective-bargaining agreements.’”) (quoting Caterpillar, 482 U.S. at 394-95); see also Livadas,
512 U.S. at 121-22 (“we have read the text of § 301 not only to grant federal courts jurisdiction
over claims asserting breach of collective-bargaining agreements but also to authorize the
development of federal common-law rules of decision”); Intl. Broth. of Elec. Workers, 481 U.S.
at 857 (“The ordinary § 301 case is a contract claim in which a party to the collective-bargaining
agreement expressly asserts that a provision of the agreement has been violated.”) (citing
23

Teamsters v. Lucas Flour Co., 369 U.S. 95, 104 (1962)); Sadowski v. Tech. Career Insts., Inc.,
162 F.3d 1148, at *1 (2d Cir. 1998) (unpublished summary order) (“Section 301 of the LMRA
preempts—in addition to claims alleging a breach of a collective bargaining agreement—claims
that, although sounding in tort, are inextricably intertwined with consideration of the terms of the
collective bargaining agreement.”).
First, Plaintiffs admit, as they must, that “the UMMF’s claims are based on rights granted
to it in the CBAs” but contend that “it is wholly irrelevant for the purposes of LMRA preemption
that the UMMF’s rights are founded upon rights created by the [CBAs] . . . . What matters is
whether discerning those rights requires interpretation of the CBAs, as opposed to mere
consultation.” Pls.’ Opp’n Summ. J. Mem. at 10. Tellingly, Plaintiffs provide no citation for
this proposition. See id.
The fact that Plaintiffs allege a violation of their rights under the CBAs requires this
Court to do more than consult the CBAs. “[Q]uestions relating to what the parties to a labor
agreement agreed, and what legal consequences were intended to flow from breaches of that
agreement, must be resolved by reference to uniform federal law, whether such questions arise in
the context of a suit for breach of contract or in a suit alleging liability in tort.” Allis-Chalmers
Corp., 471 U.S. at 211. Here, the precise issue is whether the UMMF is an intended third party
beneficiary of the CBAs whose consent was required to amend the CBAs. If the UMMF is an
intended third party beneficiary, the amendments to the CBAs are ineffective and the Local 210
Fund breached the original CBAs by failing to remit contributions owed to the UMMF.

24

However, if the UMMF is not an intended third party beneficiary, then the amendments to the
CBAs are effective and the Local 210 Fund did not breach the amended CBAs. 18
Second, Plaintiffs’ claims for breach of the CBAs requires the Court do more than merely
consult the CBA. While “[t]he principles for deciding when a state-law claim is preempted by
the LMRA are more easily expressed than applied” as “[t]he boundary between claims requiring
‘interpretation’ of a CBA and ones that merely require such an agreement to be ‘consulted’ is
elusive,” the instant case tips towards requiring an interpretation. Wynn v. AC Rochester, 273
F.3d 153, 157-58 (2d Cir. 2001) (per curiam) (citing Foy, 127 F.3d at 233). Plaintiffs contend
that “the meaning of the relevant provision of the CBAs has never been contested, and is no way
dependent on an analysis of the CBAs” because “whether the UMMF was an intended thirdparty beneficiary—the dispositive issue in this case—depends not on the language of the CBAs,
but on New York contract law as applied to the language of the CBAs.” Pls.’ Opp’n Summ. J.
Mem. at 10. Conversely, according to Defendants, “[a] key issue before this Court is whether
language in the CBAs make the UMMF an intended beneficiary, as plaintiffs claim, or an
incidental beneficiary, as defendants argue,” Defs.’ R. Summ. J. Mem. at 4, and “the parties’
conflicting claims will require this Court to analyze and interpret [the CBAs].” Defs.’ Opp’n
Summ. J. Mem. at 11.

18

Plaintiffs’ contend that “the Court can simply read the relevant provisions of the CBAs, which explicitly provides
the amount owed, timing, and recipient of the contributions,” to determine Plaintiffs’ rights under the CBAs. Pls.’
Opp’n Summ. J. Mem. at 10 (citing Lingle, 486 U.S. at 413, n.12 (“A collective-bargaining agreement may, of
course, contain information such as rate of pay and other economic benefits that might be helpful in determining the
damages to which a worker prevailing in a state-law suit is entitled.”). However, the plaintiff’s rights in Lingle were
based on state law prohibiting an employees’ retaliatory discharge and were independent of the CBA. Lingle, 486
U.S. at 407; see also Hernandez v. Conriv Realty Assoc., 116 F.3d 35, 40 (2d Cir. 1997) (finding the plaintiff’s
breach of contract claim, which required “a court . . . to refer to a collective bargaining agreement to determine
[plaintiff’s] rate of pay,” was not preempted where the plaintiff’s rights were based on an individual contract
between the employer defendant and plaintiff and were independent of the CBA).

25

The Second Circuit’s decision in Wynn, 273 F.3d 153, is instructive. The plaintiff in
Wynn brought an action for fraud in state court alleging that his supervisor “made certain false
representations to [plaintiff] concerning [plaintiff’s] right to unemployment benefits under a
[CBA].” Id. at 154. The action was later removed to federal court under the LMRA. Id. In
defending the district court’s jurisdiction under the LMRA, the defendants argued that
determining the plaintiff’s fraud claim would require interpretation of the CBA. Id. at 156. The
court disagreed, explaining that “there is no genuine issue between the parties concerning
interpretation of the CBA. As [defendant’s] candidly admitted, the conclusion that [plaintiff]
was in fact eligible for supplemental unemployment benefits is ‘compell[ed]’ by the plain
language of the relevant agreement.” Id. at 158. 19 The court explained that “where the parties
agree about what the CBA provided and that the alleged statements about the CBA’s terms (if

19

Plaintiffs contend that “there is no dispute regarding the existence of these documents [CBAs] and the language
contained therein.” Pls.’ R. Summ. J. Mem. at 6 (citing Docs. 135, 301); see also Miranda I, 670 F. Supp. 2d at 273
(“[u]nder their plain terms, the relevant CBAs obligate Defendants AWF and Local 210 Fund to accept funds from
Contributing Employers and then to remit a certain percentage of such funds to Plaintiff UMMF.”) (emphasis
added); Miranda II, 785 F. Supp. 2d at 384-85 (“based on the express terms of the CBAs . . . . Plaintiffs are a thirdparty beneficiary under the terms of the CBAs.”) (emphasis added). However, even if the express meaning of the
CBAs is not in dispute, “questions relating to what the parties to a labor agreement agreed, and what legal
consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform
federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability
in tort.” Allis-Chalmers Corp., 471 U.S. at 211; see also Ferrara v. Leticia, Inc., No. 9 Civ. 3032 (RRM) (CLP),
2012 WL 4344164, at *7 (E.D.N.Y. Sept. 21, 2012) (distinguishing “the alleged breach . . . of the CBA itself,
thereby requiring interpretation of the CBA and warranting preemption under § 301” from claims based on contracts
other than the CBA); Peters v. Sikorsky Aircraft Corp., No. 04 Civ. 1066 (PCD), 2006 WL 2331077, at *12 (D.
Conn. Aug. 10, 2006) (finding “it is well settled that federal labor law [Section 301] preempts the state law claim”
for breach of the CBA because “[t]he court must construe and interpret the terms and provisions of the CBA to
decide Plaintiff’s breach of contract claim”); Fuchs v. Cristal Concrete Corp., No. 4 Civ. 1555 (ETB), 2006 WL
2548169, at *12 (E.D.N.Y. July 18, 2006) (“claims, which are based on breach of the express terms of the
agreement and are founded exclusively upon the rights and duties specified in the Agreement, fall with[in] the scope
of Section 301 preemption.”); Golnik v. Amato, 299 F. Supp. 2d 8, 20 (D. Conn. 2003) (explained that where the
plaintiff “relies upon no other contract or agreement for his breach of contract claim,” “his breach of contract claim
is wholly dependent upon the provisions of the CBA . . . . [and] to determine whether the Defendants violated the
CBA, the Court must necessarily interpret the CBA.”); Meier v. Premier Wine & Spirits, Inc., 371 F. Supp. 2d 239,
246 (E.D.N.Y. 2005) (“A determination of whether the defendants breached that contract necessarily requires an
assessment of the rights and duties created by the CBA.”).

26

made) were false, the fraud claim requires no interpretation of the CBA, and is therefore not
preempted by § 301.” Wynn, 273 F.3d at 159. However, the plaintiff’s rights in Wynn were
based on an independent state cause of action—the fraudulent misrepresentation of the rights
enumerated in the CBA. Id. While Plaintiffs contend that its rights under the CBA are similar to
the plaintiff’s eligibility for benefits in Wynn because both are “unambiguously stated in the
CBAs,” Pls.’ Opp’n Summ. J. Mem. at 10, here, Plaintiffs’ rights have no independent basis
separate from the CBA. The Wynn court itself distinguishes the instant case, explaining that
“[Plaintiff’s] claim is not a disguised claim for breach of the CBA. . . . His claim is not that GM
did not provide what the CBA required, but that GM officials misled him into selecting one
option by misrepresenting the availability of the other.” Wynn, 273 F.3d at 159; see also
Ferrara, 2012 WL 4344164, at *6 (finding defendant’s prima facie tort counterclaim preempted
where “defendant has identified no duty independent of that embodied by or included in the
CBA, and therefore, any harm alleged and defenses to it would necessarily be dependent upon
the CBA for their construction.”). Here, Plaintiffs’ claim is exactly that the Local 210 Fund did
not provide what was required under the CBAs. Accordingly, Plaintiffs’ breach of contract
claims are preempted by Section 301.
Defendants’ contention that this Court is precluded from construing these claims as
federal claims brought under Section 301 is without merit. Nothing in the Second Circuit’s
decision limits this Court’s jurisdiction to determine “only” whether supplemental jurisdiction
exists over Plaintiffs’ breach of contract claims. Moreover, the Second Circuit itself recognized
the possibility that Plaintiffs’ state law claims may be preempted. See Silverman, 761 F.3d at
288 n.4. Thus, the Second Circuit implicitly recognized that this Court would have to decide (1)
whether Plaintiffs’ claims were preempted, and, if so, (2) how this litigation would proceed.
27

While this Court finds Plaintiffs’ claims are preempted, the Court grants Plaintiffs’ request to
move for leave to amend the Amended Complaint in order to assert claims under Section 301.
See Pls.’ Opp’n Summ. J. Mem. at 8 n.6.
e. The Escrowed Funds
Defendants move for release of the escrowed funds posted pursuant to a stipulation
entered by the parties and approved by the Court on April 4, 2013 (the “Stipulation”). Doc. 241;
Defs. Mot. for Release. Plaintiffs move for prejudgment attachment on the funds currently in
escrow. Pls.’ Mot. for Prejudgment Attachment. The Court denies Plaintiffs’ motion for
prejudgment attachment of the escrowed funds and grants Defendants’ motion for release of the
escrowed funds.
Rule 64 of the Federal Rules of Civil Procedure provides that attachment is available
“under the law of the state where the [district] court is located.” FED. R. CIV. P. 64. The grounds
for attachment in New York are set out in Section 6212 of the New York Civil Practice Law and
Rules (“C.P.L.R.”). “To be successful on a motion for attachment, a plaintiff must demonstrate
(1) that there is a cause of action, (2) that it is probable that the plaintiff will succeed on the
merits, (3) that one or more grounds for attachment provided in [C.P.L.R.] Section 6201 exist,
and (4) that the amount demanded from the defendant exceeds all counterclaims known to the
plaintiff.” In re Amaranth Natural Gas Commodities Litig., 711 F. Supp. 2d 301, 305 (S.D.N.Y.
2010) (citing C.P.L.R. 6212(a)). “Plaintiffs’ burden of proving the right to an attachment is
high.” Id. Moreover, “[b]ecause attachment is a harsh remedy, the statute must be strictly
construed in favor of those against whom it may be applied.” Rothberg v. Chloe Foods Corp.,
No. 06 Civ. 5712 (CPS) (KAM), 2008 WL 268061, at *7 (E.D.N.Y. Jan. 29, 2008); see also In
re Amaranth Natural Gas Commodities Litig., 711 F. Supp. 2d at 305; Buy This, Inc. v. MCI
28

Worldcom Commc’n., Inc., 178 F. Supp. 2d 380, 383 (S.D.N.Y. 2001) (“attachment should [be]
issue[d] only upon a showing that drastic action is required for security purposes.”) (emphasis
original). While “the granting of prejudgment attachments is discretionary,” Rothberg, 2008 WL
268061, at *7 (citing Elliott Assoc., L.P. v. Republic of Peru, 948 F. Supp. 1203, 1211 (S.D.N.Y.
1996)), “where a statutory ground for attachment exists and both need and likelihood of success
are established, [a district court’s] discretion does not permit denial of the remedy for some other
reason, at least absent extraordinary circumstances and perhaps [not] even then.” In re Amaranth
Natural Gas Commodities Litig., 711 F. Supp. 2d at 305-06 (alterations in original).
Plaintiffs assert grounds for attachment under C.P.L.R. Section 6201(3), specifically, that
Defendants, with the intent to “frustrate the enforcement of a judgment,” disposed of or secreted
its assets. Pls.’ Mem. at 11 (citing C.P.L.R. § 6201(3)). “To establish the third element for
attachment, the plaintiff must prove both that the defendant (1) has assigned, disposed of,
encumbered, or secreted property, or removed it from the state, or is about to do any of these
acts; and (2) has acted or will act with the intent to defraud creditors or to frustrate the
enforcement of a judgment that might be rendered in plaintiff’s favor.” DLJ Mortg. Capital, Inc.
v. Kontogiannis, 594 F. Supp. 2d 308, 319 (E.D.N.Y. 2009) (citing C.P.L.R. § 6201(3)). The
only elements in dispute are whether Defendants have intentionally sought to frustrate the
enforcement of a judgment by disposing of its assets and whether Plaintiffs have established that
there is a probability of success on the merits. 20
20

Plaintiffs assert two causes of action for breach of contract against Local 210 Fund. Doc. 54. Local 210 Fund
does not assert any counterclaims. Doc. 112.
Because the Court finds Plaintiffs have not established that Defendants intentionally sought to frustrate the
enforcement of a judgment by disposing of its assets, the Court does not need to address Plaintiffs’ probability of
success on the merits. However, as discussed supra at III.b, Plaintiffs have established their probability of success
on the merits.

29

Plaintiffs argue that the third element for attachment under Section 6201 has been
established based on evidence that (1) Defendants closed its bank accounts disclosed during
merits discovery shortly after Plaintiffs’ moved for entry of judgment and severed ties with its
advisors, and (2) Defendants refused to comply with Plaintiffs’ post-judgment discovery
requests. Pls.’ Mem. at 3-4, 12; Decl. of Robert J. Kipnees (“Kipnees Decl.”) ¶¶ 5-10. 21
Plaintiffs also contend that the Local 210 Fund has been “consistently losing money” and has
had a “decrease in net income in three of the last four years,” creating “an undeniable risk that if
the escrowed funds are released, the Local 210 Fund will (in fact) not be able to satisfy a
judgment entered against it.” Pls.’ Mem. at 11-12; Kipnees Decl. ¶ 15. Plaintiffs’ arguments are
unavailing.
While Plaintiffs establish, and Defendants do not deny, that it moved the accounts from
Amalgamated Bank to M&T Bank and severed its relationship with certain advisors, “the mere
removal or assignment or other disposition of property is not grounds for attachment.” Aekyung
Co., Ltd. v. Intra & Co., Inc., No. 99 Civ. 11773 (LMM), 2000 WL 10216, at *2 (S.D.N.Y. Jan.
6, 2000) (citing Computer Strategies, Inc. v. Commodore Bus. Machs., Inc., 105 A.D.2d 167,
173, 483 N.Y.S.2d 716, 721 (2d Dep’t 1984) (per curiam)); see also Dafeng Hengwei Textile
Co., Ltd. v. Aceco Indus. & Commercial Corp., 54 F. Supp. 3d 287, 294 (E.D.N.Y. 2014) (citing
DLJ Mortg. Capital, 594 F. Supp. 2d at 319). Plaintiffs must also establish that Defendants
moved these accounts with the intent to frustrate the enforcement of a judgment. See DLJ
Mortg. Capital, Inc., 594 F. Supp. 2d at 319. Defendants explain that its account was transferred
21

Plaintiffs contend that it served interrogatories and noticed depositions on the Local 210 Fund, which were
ignored until the UMMF fund served a Restraining Notice pursuant to Federal Rule 69(a)(1) and C.P.L.R. § 5222 on
Defendants’ new bank, M&T Bank, to secure the Judgment. Pls.’ Mem. at 13; Kipness Decl. ¶¶ 11, 12. Plaintiffs
contend that the Local 210 Fund should have informed the UMMF that it changed banks by, for example, amending
its initial disclosures and/or complying with post-judgment discovery. Pls.’ Mem. at 13.

30

from Amalgamated Bank to M&T Bank before the district court’s final judgment because of a
conflict between the Local 210 Fund and Amalgamated Bank. See Defs.’ Release Mem. at 1213; Defs.’ Opp’n Mem. at 7-8 (explaining that Defendants closed their accounts with
Amalgamated Bank because “the bank failed to meet regulatory guidelines and the high turnover
rate of its money managers made the trustees uncomfortable with the bank handling the fund’s
money.”); see also Decl. of Thomas A. Thompson (“Thompson Decl.”), Ex. A at Response No.
5. Defendants also contend that, like other funds, it replaced its money managers when they
failed to meet the fund’s investment benchmarks over a period of time. Defs.’ Opp’n Mem. at 8;
Thompson Decl. ¶ 10, Ex. A at Response No. 5. The fact that Defendants moved its account
from one bank to another, by itself, does not show an intent to frustrate the enforcement of the
Judgment in favor of Plaintiffs. 22
Plaintiffs argue that Defendants’ intent to frustrate the enforcement of a judgment can
also be inferred from Defendants’ purported failure to comply with Plaintiffs’ post-judgment
discovery requests. Pls.’ Mem. at 12. However, Defendants contend that it responded to
Plaintiffs’ interrogatories within the timeframe required under the Federal Rules and that
Defendants were in the process of determining availability and scheduling the requested
depositions. 23 See Defs.’ Opp’n Mem. at 7; Thompson Decl. ¶ 8, Ex. A. No intent to frustrate
the Judgment can be ascribed to Defendants’ response to Plaintiffs’ interrogatories within the
22

While Plaintiffs explain the lengthy process it took to obtain the information required to attach the funds to satisfy
the Judgment, the fact that Defendants ultimately agreed to enter into the Stipulation—securing the Judgment at
110% of its value—belies Plaintiffs’ contention that Defendants’ movement of its funds to another bank was done to
intentionally frustrate the Judgment.

23

Plaintiffs filed its first set of post-judgment interrogatories on February 11, 2013. Defendants responded on
March 11, 2013, within the time period imposed by Rule 33. See Thompson Decl., Ex. A; FED. R. CIV. PRO. 33
(“Time to Respond. The responding party must serve its answers and any objections within 30 days after being
served with the interrogatories.”).

31

timeframe allotted by the Federal Rules.
Lastly, Plaintiffs contend that Defendants will not be able to satisfy a judgment entered
against it if the escrowed funds are released. See Pls.’ Mem. at 12; Kipnees Decl. ¶ 15.
Specifically, “in 2013, the Local 210 Fund reported a loss of net income in the amount of
$1,226,811; in 2012, it reported an increase of net income in the amount of $897,876; in 2011, it
reported a loss of $6,013,080 in net income; and, in 2010, its net income again decreased by
$1,649,569. Stated differently, over the last four years, the Local 210 Fund has lost $7,991,584
in net income, which is more than double the amount of the escrowed funds.” Pls.’ Mem. at 12;
Kipnees Decl. ¶¶ 16, 17 (internal citations omitted). Defendants counter that they have a steady
stream of funds and are able to pay any potential judgment against them. Defs.’ Release Mem. at
13. Specifically, Defendants contend that as of December 31, 2013, “the Local 210 Fund has
$11,171,120 in net assets, $41,649,457 in total income, and negative $1,226,811 in net income.”
Defs.’ Opp’n Mem. at 8. Defendants explain that if the fund was able to place the $2.8 million
currently held in escrow with its money managers, “the fund’s net income would assuredly be
closer to zero.” Id. The fact that Defendants have lost money in three of the four years between
2010 and 2013, does not overcome the fact that Plaintiffs fail to satisfy the elements of C.P.L.R.
Section 6201(3). See Ames v. Clifford, 863 F. Supp. 175, 177 (S.D.N.Y. 1994) (noting that
where defendants are “subject to the jurisdiction of the Court, attachment is only permitted upon
a showing that the defendant is attempting to dispose of his assets in order to frustrate the ability
of the plaintiff to collect any judgment that might ultimately be obtained.”). Accordingly,
Plaintiffs’ argument for prejudgment attachment of the escrowed funds fails. The Court now
turns to Defendants’ motion for release of the escrowed funds.
The escrowed funds were posted pursuant to the Stipulation entered by the parties. See
32

Doc. 241. The escrow account was to “serve in lieu of a supersedeas bond” while the appeal
was pending. Id. at ¶ 7. Under the Stipulation, if the Court of Appeals “vacates the Judgment
and remands this action to the District Court . . . the stay of the execution of the Judgment shall
expire two (2) business days after the entry of the decision and order of the Court of Appeals . .
.” and upon meeting certain requirements, the parties may apply to the court to release the
escrowed funds pursuant to the Stipulation. Id. at ¶ 12; see also See Revlon, Inc. v. Carson
Products Co., 647 F. Supp. 905, 906 (S.D.N.Y. 1986) (“Logically, a supersedeas bond securing
the stay should also be limited to the court of appeals. Consequently, the bond should be
released once the appellate court has reversed the underlying judgment.”). The Second Circuit
vacated the district court’s judgment and Plaintiffs do not contend that Defendants failed to
adhere to the terms of the Stipulation. Plaintiffs concede that “the literal terms of the Stipulation
no longer require the escrowed funds to be held in escrow” and provide no argument, beyond the
rejected argument that prejudgment attachment of the escrowed funds is necessary, for why the
escrowed funds should not be released pursuant to the Stipulation. Pls.’ Mem. at 6.
Accordingly, under the plain language of the Stipulation, the escrowed funds should be released.
IV. Conclusion
For the reasons set forth above:
•

Plaintiffs’ Motion for Summary Judgment on counts one and two is DENIED. Plaintiffs’
state law claims for breach of contract are preempted by LMRA Section 301. Should
Plaintiffs wish to amend the Amended Complaint to assert violations of the LMRA they
shall do so by August 21, 2015.

•

Defendants’ Motion for Summary Judgment is GRANTED in part and DENIED in part.
Specifically, Defendants’ motion for summary judgment on counts one and two is denied,
the motion for summary judgment as to the abandonment or waiver of the breach of
contract claims is denied, and the motion for summary judgment as to preemption of the
breach of contract claims under LMRA Section 301 is granted.
33