Mason Tenders District Council of Greater New York et al v. Concore Equipment, Inc. et al

Filing 64

OPINION re: 56 MOTION to Dismiss for Lack of Jurisdiction filed by Patricia Rice, Concore Equipment, Inc. Upon the conclusions set forth above, the Defendants' motion to dismiss is denied. Settle judgment on notice. (Signed by Judge Robert W. Sweet on 9/18/2013) (cd)

UNITED STATES DISTRICT
SOUTHERN DISTRICT OF NEW YORK

----- ----------------------------------x
MASON TENDERS DISTRICT COUNCIL OF
GREATER NEW YORK, et al.,
Plaintiffs,
10 Civ. 4227

(RWS)

- against ­
OPINION
CONCORE EQUIPMENT INC., et al.,
Defendants.

----------------------------------------x
A P PEA RAN C E S:

Attorne

for Plaintiffs

GORLICK, KRAVITZ & LISTHAUS, P.C.
17 State Street, 4th Floor
New York, NY 10004
Andrew A. Gorlick, Esq.
Deke W. Bond, Esq.

TRIVELLA & FORTE LLP
1311 Mamaroneck Ave., Suite 170
White
10605
A. Smith, Esq.

USDCSDNY

DOCUMENT
ELECTRONICALl.Y FILED
DOC#:
l~
DATE FILED:9\3

Sweet, D.J.

Defendants Concore Equipment
Patri

Rice ("Rice" and, col

f

Inc.

("Concore")

ively, "Defendants") have

moved pursuant to Rules 12 (b) (1) and 56 of the
12 (b) (1) If and "Rule 56",

of Civil Procedure ("
re

ly) to

lf
),

smiss the complaint filed by pla

Mason Tenders District Council Wel

Fund, Annuity Fund and Tra
J. Virga,

in his fiduciary capacity as

conclusions set

This act

re Fund, Pension

Fund (the "Funds"),

(the "Director" and, collective

Pla

iffs

strict Council of Greater New York (the

Mason Tenders
"Union

ral Rules

John

rector of the Funds

,"Plaintif

If).

Upon

rth below, the motion is denied.

is the culmination of t

effort of the

iffs, beginning in 2003, to enforce a collective
senting the procedural

bargaining agreement, an effort
hurdles

scribed

low.

Prior Proceedings

The Plaintiffs initiated an action against
Defendants

2003 seeking to recover delinquent fringe
1

benefit contr

ions, dues checkoffs and Political Action

Committee contributions from Defendants (

"2003

Litigation"). On November 1, 2006, during a Court
settlement con

red

rence before the Court, the parties entered

into a handwritten Settlement Agreement
agreed to pay Pla

which De

nts

iffs $288,000.00 over the course of

several months and to execute a formal stipulation. On
November 29, 2006, t
the settlement con

Court di

on November 6, 2009.

rence he

The

or signed the formal stipulation

Defendants never negot
and,

ssed the case pursuant to

, did not make any

yment under the Settlement

Agreement.

aintiffs filed a motion for summary judgment on
March 13, 2008 to enforce t
smissed that motion

Settlement Agreement. The Court

lack of

ect matter jurisdiction

on September 29, 2009 on the basis that
settlement had not been

terms of

rated into the dismissal order

(the "September 29 Order").

Plaintiffs commenced the

ent action against

Defendants in May 2010, seeking (i) to enforce the Settlement
Agreement because it is a contract between a union and
2

employer under section 301 of
Act ("LMRA"),

Labor Management Relations

(ii) reinstatement of the prior litigation and

(iii) to compel Defendants to allow the Funds to conduct an
audit of Concore's books and reco
sent under the terms of collect

from May 25, 2004 to the
bargaining agreements

the Union and Defendants.

Plaintiffs moved for partial summa
Defendants breached t

c
t

Settlement Agreement and

Funds were entitled to an audit of Concore's books

t t

. Defendants cross-moved see

reco
a

judgment on its

dismissal of

iffs' Complaint.

On November 10, 2011, the Court is
and

"November 10 Opinion and

0

a

an opinion

for summary judgment in

iffs' mot

the

t granted
rt,

were entitled to the audit request

and

breach of t
existed as to

r a valid

e collective bargaining agreement

t

breached the Settlement Agreement.

Concore
Court

ld that

iffs' summary judgment as to Rice

Pia

r

Settlement Agreement because a fact issue
rsonal liability and Rice's intent to be

personally bound.
3

In the November 10 Opinion and Order, the Court
ermined that

September 29
e evidence

cause there was
ace its judic

was entered erroneously
the Court int

to

1 imprimatur on the settlement, and,

as a

result, the Court retains jurisdiction to enforce the November
1, 2006 Settlement
29

r, reopened

reement.

The Court vacated the S

2003 Litigation

consolidated t

r

t

action with the instant action.

The November 10 Opinion and
Court had independent jurisdiction over
because Plaintiffs'
from

a

of contract

Settlement

and the

r also held

the

2010 Litigation
audit claims arose
lective bargaining

s, respectively, because the contracts were between
the

on and Defendants, thereby providing jurisdiction under

LMRA § 301 (a) .

On January 28, 2013, the Court
bench
against

al on the sole remaining issue of personal liability
of four witnesses, including

ceo Following test

Rice herself, Defendants' counsel moved to di
The Court

ed a one-day

ied that motion.

Court held
4

ss the case.
t

ce is

bound by, and personally liable under, the Settlement
ement.

The Court also addressed the issue of subject

matter jurisdiction and stated, "[w]ell, wi
issue of jurisdiction, I
2010 [summary judgment] op
op

re

ct to the

d seek to deal with that in the
ion, and I will st
ave to the

The Court

by that

~efendants

to submit

1 briefing on the issue.

On May 20, 2013, De
to

s filed the

tant motion

ss for lack of subject matter jurisdiction, cont

that

Court's order di

ssi

2003 Litigation

not

ss any intent by the Court to retain jurisdiction over
Agreement as re

Sett

under Kokkonen v.

Ins. Co. of Am., 511 U.S. 375

Guard

motion was marked fully submitt

(1994).

The

on July 26, 2013.

The Applicable Standard

A

cially sufficient complaint may be "properly

dismissed for lack of subject matter juris
12(b) (1) when the district court lac

ction under Rule

the statutory or

constitutional power to adjudicate it." Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000). Once subject matter
5

jurisdiction is challenged, the burden of establishing
jurisdiction rests with the party asserting that it exists.
See Thomson v. Gaskill, 314 u.S. 442,
omitted) .

446

(1942)

(citations

The party asserting subject matter jurisdiction has

the burden of proving, by a preponderance of the evidence,
that the court has subject matter jurisdiction. See Makarova,
201 F.3d at 113.

"[JJurisdiction must be shown affirmatively, and
that showing is not made by drawing from the pleadings
inferences favorable to the party asserting it." Shipping Fin.
Servs. Corp. v. Drakos, 140 F.3d 129, 131
(citations omitted).

(2d Cir.1998)

As such, a court may rely on evidence

outside of the pleadings, including declarations submitted In
support of the motion and the records attached to these
declarations. See Makarova, 201 F.3d at 113 ("In resolving a
motion to dismiss ... under Rule 12(b) (1), a district court
... may refer to evidence outside the pleadings.").

A motion under Rule 56 must be granted if "the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a)
6

In determining whether

a

ine issue of material fact exists, the courts do not try

issues of fact, but, rather,

s

rmine "whether t

s a sufficient dis

evidence

t to require submission to a

jury or whether it is so one s

that one party must prevail

as a matter of law.R Anderson v. Libert

Inc'

r

477 U.S.

242, 251 52 (1986).

"The party seeking summary judgment bears the burden
of est

ishing that no

issue of material

and that the undisputed facts est

lish her right to j

as a matter of law. R Rodri
1060-61 (2d Cir. 1995)

exists

of N.Y., 72 F.3d 1051,

(citation omitted).

is appropr ate where the moving

Summary j

y has shown that "1

or no evi

may be found in s

party's case.

When no rational j

the nonmoving

rty because the

of the nonmoving
find in favor of
nce to support its case

is so slight, there is no genuine issue of material fact

a

grant of summary judgment is proper.R Gallo v. Prudential
Residential Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir. 1994)
(citations

).

In considering a motion for summary

judgment, the Court must "view the
favorable to the non-moving party and
inference in its

in the light most
all reasonable

r, and may grant summary judgment only
7

could find in favor of

when no reasonable trier of
nonmoving party."

in, 64 F.3d 77, 79 (2d

--------------~----

Cir.1995)

ion marks and citations omitted)
Co., Ltd. v. Zenith Radio

see also Matsushita Elec. I
Corp., 475 U.S. 574, 587

i

(1986).

However, "the non-moving

party may not rely simply on conclusory allegations or
speculation to avoid summary j

, but instead must offer

evidence to show that its version of events is not wholly
fanciful."

Morris v. Lindau, 196 F.3d 102, 109 (2d Cir. 1999)

(internal quotation marks and citation omitted) .

It is noted that no
sen ted by the Defendants

1 statements have been
uant to Local Rule 56.1.

The

motion will therefore treated as a motion to dismiss pursuant
to Rule 12(b) (1)

for lack of subject matter jurisdiction.

The Motion To Dismiss For Lack Of Subject Matter Jurisdiction
Is Denied

A.

Jurisdiction Has Previously Been De

Despite Defendants' contention
not int

to retain jurisdiction on summa

8

Court did

t

j

November 10 Opinion and Order

ss

this issue and

ssly noted that retention of jurisdiction is proper
is ample evidence .
to place its judicial impr

the District Court
on [a] settlement,

the court retains jurisdiction to oversee the enforcement of
November 10

_ _ _ _ _ _ _ _ _ _ _ _ _ _- L_ _ _ _ _ _ _ _ _ _ _ _

~

_ __

r, 2011 U.S.

Dist. LEXIS 132200, at **20-21.

ifically the Court held:

Here,
November 29, 2006 0
r
di
ssing the [2003 Litigation] s
"Pursuant to the pre-trial con rence he
the Court on 11-1-06 and the Court
ng been advised that this act
is
sett
, IT IS ORDERED that the C rk of
Court terminate all pending mot
is action is dismissed."
record
establishes that the September 29
r was in error in view of the
ct
Court's November 29, 2006 0
r
ssal referenced the parties'
November I, 2006 pretrial conference and
by
lication, the November I, 2006
[Settlement] Agreement. There is ample
t
Court intended to place
al imprimatur on the settlement
and, as a result, the Court retains
ction to enforce the November I,
juri
ttlement] Agreement.
2006

Id. at *21 (emphasis

).

9

Because the case had settl
Court reta

re the Court, the

jurisdiction over the Settlement Agreement.

See, e.g.,

, 587 F.3d at 150-53 (court's order dismissing

civil rights lawsuit based upon parties' settlement was
sufficient judicial imprimatur to render plaintiffs prevailing
parties, where
essentially all t

agreed to provide
rei

a

iffs with

f they sought, in cons

ration of

plaintiffs' agreement to dismiss lawsuit).

r 10 Opinion and Order consi

The
determined that

Court

s subject matter juris

red and
ction over

the Settlement Agreement.

B. LMRA

§

301 Establi

The Settlement
and Employer within
November 10 Opinion and

sdiction

reement

lS

a contract between

ng of LMRA

§

301(a).

See

r, 2011 U,S. Dist. LEXIS 132200,

at *24.

Section 301(a) provides:

10

Suits for violation of contracts between
an employer and a labor organization
representing employees in an industry
affecting commerce as defined in this Act,
or between any such labor organizations,
may be brought in any district court of
the United States having jurisdiction of
the parties, without respect to the amount
in controversy or without regard to the
citizenship of the parties.

29 U.S.C.

§

185(a)

1

The Settlement Agreement in this case is a contract
between the Plaintiff Union and the Defendant Employer. Thus,
LMRA

§

301(a) allows the Union to file a lawsuit in federal

district court.

Further, jurisdiction is proper under LMRA

§

301

because claims in the 2010 Litigation which arise from the
collective bargaining agreements with the Union in place that
bind both Concore Equipment as well as Rice individually.

1 Under LMRA §
301(b), 29 U.S.C. § 185(b), the Union may sue or
be sued as an entity and on behalf of the employees it
represents. Concore is for-profit domestic corporation doing
business in the City and State of New York and employs Mason
Tenders. Thus, as has already been determined, Concore is an
employer whose activities affect commerce within the meaning
of LMRA § 301(a) and (b), 29 U.S.C. § 185(a) and (b) and an
employer within the meaning of §§ 3(5) and 515 of ER ISA, 29
U.S.C. §§ 1002(5) and 1145.

11

Summa

a

judgment has been granted in favor of

c

t

iffs on

and ordered that Defendants must submit
and records for an audit to determine any

addit

fringe benefit contributions, dues

1 unpa

ions from May 2004 - May 2010.

and PAC contr

st

A

ckof

jurisdiction over an action

ct court

t an employer to enforce the provisions

filed by a

of a contact under LMRA § 301. United Constr. Workers v.
Electro Chern.

Co., 175 F. Supp. 54, 56-57

------------------~----~~---

1959) ;

__

~

__

~

_ _ _ _ _ _ _ _ _ _ _ _L __ _ _ _ _ __ _

, No.

96 Civ. 2675; 1996 U.S.

Dist. LEXIS 7711 at *6 (S.D.N.Y. June 6, 1996)
courts have subject matter juris

Fairfield

"~I~t

r a

occurred, a court must necessarily
agreement exists in the first

(district

ction to determine whether

agreement exists under LMRA § 301(a)).
however, that to determine whet

(S.D.N.Y.

ace."

er of Nat'l E

is axiomatic,

of agreement has
ne whether a valid

te

Kozera v. Westchesterractors Assoc.

Inc., 909

~~~~~--~~~--~--~~----------------~------------~------

F.2d 48, 52 (2d. Cir. 1990),

~c_e_r~t_.____~_,

498 U.S. 1084

(1991) .

As the Court has already determined, the Settlement
Agreement and the collective bargain
12

agreements are

contracts between the Union and t
meaning of LMRA § 301. S

Defendants within the

29 U.S.C. § 185(a).2

has subject matter juris
the Union against Concore/

As such, the

ction over this action fil
ce to enforce the provisions of

se contacts pursuant to LMRA § 301. See United Constr.
Wor

rs, 175 F. Supp. at 56-57.

Conclusion

Upon the conclusions set forth
De

s' motion to dismiss is denied.

, t
Settle judgment on

notice.

It is so ordered.

New York, NY
September I~ 2013

ROBERT W. SWEET
U.S.D.J.

Ancillary jurisdiction exists when enforcement of the
Settlement Agreement would "permit disposition by a single
court of cla
that are, in varying respects and degrees,
factually int
," or to "enable a court to function
successfully,
is, to manage its proceedings, vindicate
its author y, and effectuate its decrees." Kokkonen, 511 U.S.
at 379-80.
2

13