of a material fact, "all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a judge or jury to resolve the parties' differing versions of the truth at trial." Anderson, 477 U.S. at 249 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)).
In light of these standards and the foregoing discussion, this Court must deny Respondents' motion for summary judgement. As repeatedly stated above, each of Respondents' claims and arguments is irrelevant to this Court's task of appointing an impartial umpire pursuant to LMRA section 302(c) according to the substantive law of the LMRA. Thus, Respondents not only have failed to demonstrate that they are entitled to judgment as a matter of law, but they also have failed to provide this Court with any facts that are material to resolving the instant petition. Consequently, Respondents' motion for summary judgment motion must be denied.
D. Further Procedures
Because Petitioners "satisfy this Court that (a) a genuine deadlock exists on an issue of administration, (b) no agreed neutral person is available to break the impasse, [and] (c) the parties fail to agree on an impartial umpire," Singleton, 336 F. Supp. at 757, this Court will appoint an impartial umpire pursuant to section 302(c) of the Labor Management Relations Act, 29 U.S.C. § 186(b)(5), to vote on the issue of whether to commence a new JATP apprenticeship class. To facilitate this Court's appointment of an impartial umpire, within thirty (30) days of the filing of this Opinion and Order, Association Trustees and Union Trustees each shall submit to this Court in writing the names of ten (10) persons proposed as umpire, indicating by number their priorities of choice. Each person on each list must be eligible to serve as a trustee according to the criteria and the restrictions set forth in Article VII, paragraph 7.2 of the Trust Agreement and Article VIII of the Trust Agreement. Although this Court will examine the parties' respective submissions, this Court retains complete authority and discretion to appoint an umpire, and this Court is in no way bound to select an impartial umpire from these submissions. This Court has permitted the parties to submit lists of names merely as a courtesy to the parties and as a means to resolve this dispute quickly. Ultimately, however, the selection of an appropriate impartial umpire is a matter solely left to this Court's discretion. The JATP Trustees shall apply the JATP Trust Fund to pay for the reasonable costs and expenses of retaining the impartial umpire in accordance with Article III, paragraph 3.3 of the Trust Agreement.
E. Attorneys' Fees
In their Petition, Association Trustees request that this Court award them attorneys' fees, costs, and disbursements, and they further request that JATP funds be used for this reimbursement. (Pet. at 7.) Although section 302 of the LMRA does not authorize a court to award attorneys' fees in an action based solely on its authority, Fase v. Seafarers Welfare and Pension Plan, 79 F.R.D. 363, 366 (S.E.D.N.Y. 1978), section 502(g) of ERISA does. 29 U.S.C. § 1132(g). As discussed earlier, Petitioners properly invoked this Court's jurisdiction under ERISA section 502 because: the JATP is an employee benefit plan within the meaning of ERISA; Petitioners are fiduciaries with the right to bring suit under ERISA section 502(a)(3); and Petitioners petitioned this Court for equitable relief to enforce a specific provision of the JATP employee benefit plan. Accordingly, Petitioners are eligible to request attorneys' fees from this Court.
Section 502(g) in relevant part provides that "in any action under this title . . . by a participant, beneficiary, or fiduciary, the court in its discretion may allow reasonable attorney's fees and costs of action to either party." 29 U.S.C. § 1132(g)(1). In the Second Circuit, a court must weigh five factors when considering an application for attorneys' fees: (1) the degree of the offending party's culpability or bad faith; (2) the ability of the offending party to satisfy an award for attorneys' fees; (3) whether an award of attorneys' fees would deter others from acting similarly under like circumstances; (4) the relative merits of the parties' positions; and (5) whether the parties requesting attorneys' fees sought to confer a common benefit on an ERISA plan's participants and beneficiaries. Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 871 (2d Cir. 1987); Miles v. New York State Teamsters Conference Pension and Retirement Fund Employee Pension Benefit Plan, 698 F.2d 593, 602 n.9 (2d Cir.), cert. denied, 464 U.S. 829, 78 L. Ed. 2d 108, 104 S. Ct. 105 (1983). Although the awarding of attorneys' fees "is discretionary, not mandatory," Fase, 589 F.2d at 116; see International Brotherhood of Teamsters, Joint Council 18 v. New York State Teamsters Council Health and Hospital Fund, 903 F.2d 919, 923 (2d Cir.), cert. denied, 498 U.S. 898, 112 L. Ed. 2d 210, 111 S. Ct. 251 (1990), "a district court should make specific findings regarding the matter." Joint Council 18, 903 F.2d at 924.
This Court lacks sufficient factual information to make a specific finding on each of the five elements that this Court must consider in order to resolve the issue of attorneys' fees in the instant case. Consequently, this Court will defer consideration of Petitioners' request for attorneys' fees pending the submission by Petitioners and by Respondents of supplemental memoranda of law addressing each of the five elements listed above. The Petitioners shall include a statement regarding the amount of attorneys' fees that they are seeking in this action and the Respondents shall include information concerning their ability to satisfy an award of attorneys' fees. Each party also must address Petitioners' request that attorneys' fees be paid from the JATP Trust fund.
IT IS HEREBY ORDERED that Respondents' motion for summary judgment pursuant to Rule 56 is DENIED.
IT IS FURTHER ORDERED that Petitioners' petition is GRANTED.
IT IS FURTHER ORDERED that within 30 days of the filing of this Opinion and Order Petitioners and Respondents each submit a list of ten persons proposed as umpire, indicating by number their priorities of choice.
IT IS FURTHER ORDERED that Petitioners and Respondents each propose as umpire only those persons eligible to serve as a JATP Trustee according to the criteria and restrictions set forth in Article VII, paragraph 7.2 of the Trust Agreement and Article VIII of the Trust Agreement.
IT IS FURTHER ORDERED that the JATP Trustees pay for the reasonable costs and expenses of the impartial trustee chosen by this Court in accordance with Article III, paragraph 3.3 of the Trust Agreement.
IT IS FURTHER ORDERED that within 10 days of the filing of this Opinion and Order Petitioners and Respondents each submit supplemental memoranda of law regarding the issue of attorneys' fees.
Dated: New York, New York
January 10, 1996
David N. Edelstein