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ANDREA DOREEN LTD. v. BUILDING MATERIAL LOCAL UNION 282

January 27, 2004.

ANDREA DOREEN LTD., DOROTHY LOGUIDICE, J.C.S. ENTERPRISES, INC., JACK C. STUART, J.C.S. CONSTRUCTION CO., INC., CONROC RECYCLING CORP., MICHAEL LOGUIDICE, ULTIMATE DEMOLITION, INC., and PAUL SCAGLIONE, Plaintiffs
v.
BUILDING MATERIAL LOCAL UNION 282, affiliated with the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, TOM GESUALDI, PAUL GATTUS, DENNIS GARTLAND, SR., GARY LABARBERA, LAWRENCE KUDLA and Others as TRUSTEES and FIDUCIARIES of LOCAL 282 WELFARE, PENSION, ANNUITY, JOB TRAINING, VACATION AND SICK LEAVE TRUST FUNDS, Defendants



The opinion of the court was delivered by: WILLIAM YOUNG, Chief Judge, District[fn1] [fn1] Of the District of Massachusetts, sitting by designation. Page 2

MEMORANDUM AND ORDER

I. INTRODUCTION

The Plaintiffs, Andrea Doreen Ltd., Dorothy Loguidice, J.C.S. Enterprises, Inc., Jack C. Stuart, J.C.S. Construction Co. Inc., CONROC Recycling Corp., Michael Loguidice, Ultimate Demolition, Inc. and Paul Scaglione (collectively "Doreen") brought suit under the Racketeer Influence and Corrupt Organization Act, 18 U.S.C. § 1961 et. seq. ("RICO"), against Building Material Local Union 282 ("Local 282") and the Trustees and Fiduciaries (the "Trustees") of Local 282's Welfare, Pension, Annuity, Job Training, Vacation and Sick Leave Trust Funds (the "Funds") (collectively the "Defendants"). This memorandum and order addresses the summary judgment motions made by the Trustees and Local 282 [Doc. Nos. 318, 324]. Pertinent to resolution of these matters, however, are (1) the arbitration decision, confirmed by this Court, regarding one of Local 282's counterclaims in the instant RICO action, Andrea Doreen, Ltd. v. Building Material Local Union 282, 250 F. Supp.2d 107 (E.D.N.Y. 2003); and (2) the Court's findings and rulings and Doreen's admissions in a prior action brought by the Trustees against Doreen, King v. JCS Enterprises, Inc., No. 94-4604 (E.D.N.Y. filed Sept. 30, 1994) (the "ERISA Collection Action").*fn2 Page 3

 II. BACKGROUND

  A. Procedural History

  On March 22, 1995, Building Material Local Union 282 ("Local 282") entered a consent decree with the United States Government, acknowledging that it, and certain of its members, had acted as a criminal enterprise, in conjunction with organized crime. Amended Consent Judgment, Levine Decl. Tab 3, at 1 (noting that the original Consent Judgment was ordered by the District Court on or about March 22, 1995). The consent decree enjoined Local 282 from engaging in further criminal and racketeering misconduct. Local 282's Mem. in Supp. of Mot. for Summ. J. [Doc. No. 326] ("Local 282's Mem. in Supp.") at 4; Amended Consent Judgment, Levine Decl. Tab 3.

  Between 1994 and 1996, the Trustees initiated four separate actions under section 502 of ERISA to collect fringe benefit contributions allegedly owed to the Funds by Doreen under a Collective Bargaining Agreement. Local 282's Mem. in Supp. at 10.*fn3 The four collection actions were consolidated under the Page 4 ERISA Collection Action, No, 94-4604. In the first half of 1998, the Trustees and Doreen completed discovery in the ERISA Collection Action, and the Trustees moved for summary judgment. Doreen then brought this related RICO action before the Court, No. 98-4838, against Local 282 and the Trustees under 18 U.S.C § 1962(c).*fn4 In this action, Doreen alleges, inter alia, that the ERISA Collection Action was brought against it as part of a criminal extortion conspiracy and "a sham to retaliate against Doreen." Pls.' Mem. in Opp'n to Summ. J. [Doc. No. 337] ("Pls.' Mem. in Opp'n") at 3, 15, 22. In essence, Doreen claims that Local 282 and the Trustees have — during the time that the consent decree has been in place — engaged in a criminal conspiracy to retaliate against Doreen and put Doreen out of business for refusing to make unlawful payments. Id. at 3; see Doreen, No. 98-4838, 4-5 (E.D.N.Y. July 31, 2000) (order dismissing certain claims) [Doc. No. 170]; Local 282's Mem. in Supp. at 2.

  On September 11, 2000, Local 282 filed a counterclaim against Doreen in the RICO action to collect wages that were Page 5 allegedly past due to drivers under the Collective Bargaining Agreement. Local 282's Mem. in Supp. at 14, 10.*fn5

  On June 15, 2001, Local 282 moved for partial summary judgment and for an order to compel arbitration on the question of whether Doreen failed to pay proper wages [Doc. No. 230], Doreen, on the same day, moved to dismiss Local 282's counterclaim based on laches, waiver, failure to meet a condition precedent, and lack of obligation under the Collective Bargaining Agreement to arbitrate [Doc. No. 231]. pls.' Reply Mem. [Doc. No. 241] at 4.

  Despite Doreen's arguments and defenses against arbitration, at the June 22, 2001 hearing, Judge Platt granted Local 282 partial summary judgment and directed Local 282 and Doreen to proceed to arbitration on all issues involved in this case, except the remaining RICO claim. Hearing Tr. [Docket 256] at 9-10, 14 (5/22/01). The arbitration order did not include the Trustees' claims in the ERISA Collection Action. Oct. 18, 2001 Letter from Judge Platt [Doc. No. 272].

  On June 28, 2002, Arbitrator Richard Adelman issued an Opinion and Award finding Doreen liable for failing to pay wages due its drivers under the Collective Bargaining Agreement. Arbitration Opinion and Award, Tab 1 to Levine Decl. [Doc. No. Page 6 327], at 2, 15. Because the parties had agreed to bifurcate liability from remedy, id., damages were not assessed at the time.

  On July 1, 2002, the Trustees and Local 282 separately moved for summary judgement in the instant RICO case. On July 25, 2002, Doreen opposed this motion. On September 30, 2002, this Court held a summary judgment motion hearing via video conference*fn6 and took the matter under advisement.

  On March 3, 2003, this Court confirmed the Arbitration Award and Opinion and directed Arbitrator Adelman to proceed to the remedy phase of the arbitration as quickly as possible. Doreen, 250 F. Supp.2d at 116.

  From May 12 through May 16, 2003, this Court conducted a bench trial in the related ERISA Collection Action, King v. JCS Enterprises, Inc., No. 94-4604. The relevant findings and rulings of the Court are that: (1) the defendants in the ERISA Page 7 Collection action case, Doreen, manifested an intent to adopt the Collective Bargaining Agreement for the period of 1993-1996 notwithstanding that no agreement was signed. Trial Tr. Vol. 5 at 556:11-17 (5/16/03); (2) the Trustees proved that Doreen failed to maintain adequate records as matter of law and as such violated ERISA, Section 209, 29 U.S.C. § 1059. Id. at 558:1-6;(3) Doreen waived the written demand requirement found in the Collective Bargaining Agreement "by [its] conduct in urging the joint review of . . . the records in the course of these proceedings, the conduct that led up to the KPMG report." Id. at 559:1-15 (remarking that "statutory requirements of such payments into pension funds by ERISA cannot be frustrated by the Trustees' failure strictly to follow the requirements of the Collective Bargaining Agreement");*fn7 (4) the Trustees proved that Doreen Page 8 failed to made adequate contributions to the pension plans as required by the governing Collective Bargaining Agreement. Id. at 558:15-25; and (5) the KPMG report is an adequate and reasonable basis for concluding what sums are owed by Doreen. Id. at 561:20-24.*fn8 Following the conclusion of the trial, Doreen moved for reconsideration of the Court's prior findings that the KPMG report was an adequate and reasonable basis for determining the sums owed.*fn9 The Court denied this motion. Subsequently, the parties agreed that Doreen owed the Trustees a sum of $108,108 in delinquent contributions plus interest, additional interest or liquidated damages, and attorneys fees and costs, as calculated under the requirements of ERISA Section 502(g) (2), 29 U.S.C. § 1132(g)(2). 7/11/03 Barbiero Letter; 7/15/03 Bauman Letter. The Court adopted this agreement, applied a six percent interest rate to the amount and entered judgment that JCS, Andrea Doreen, and Page 9 Conroc, jointly and severally, and Michael Loguidice and Dorothy Loguidice, individually, are liable to the Trustees for the amount of $204,662 plus attorneys fees and costs. King v. JCS Enterprises, 288 F. Supp.2d 287, 291 (E.D.N.Y. 2003).

  B. Doreen's RICO Claims and Supporting Facts

  Because Local 282 and the Union moved for summary judgment, the following facts are presented in the light most favorable to Doreen and all reasonable inferences are drawn in Doreen's favor. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Sutera v. Schering Corp., 73 F.3d 13, 15 (2d Cir. 1995) (citations omitted).

  Doreen claims that Local 282 and the Trustees violated 18 U.S.C. § 1962 (c) by conducting an enterprise through a pattern of racketeering activity. Am. Compl. [Doc. No. 137] at 21. More specifically, it claims that the Defendants engaged in a pattern of extortion, threats, damage to property, illegal union activity and systematic mail and wire fraud directed against Doreen because Doreen refused to pay bribes or otherwise play ball" with them. Pls.' Mem. in Opp'n [Doc. No. 337] at 22. Doreen's main theory is that Local 282 used its relationship with the Trustees and the Trust Funds to create a false appearance of legality for these acts by falsely asserting that Doreen was in arrears on fringe benefit payments (and had not paid such deficiencies) without providing notice of or an opportunity to Page 10 cure such deficiencies. Pls.' Mem. in Opp'n at 47. Consistent with this theory, Doreen alleges that Local 282 formed an "association-in-fact for the purpose of using the monopoly power enjoyed by [it] to destroy" Doreen's business, drive it out of the trucking industry, and prevent it from completing contracts and subcontracts. Am. Compl. ¶ 52.

  Doreen claims that the Defendants committed three different types of predicate acts (as will be discussed in further detail infra): (1) Mail and Wire Fraud under 18 U.S.C. § 1341 and 1343, respectively; (2) Extortion as defined under the Hobbs Act, 18 U.S.C. § 1951 and New York State Law; and (3) Illegal Payments to a Union or Fund, under Section 302 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 186. Id. ¶ 56.*fn10 In Doreen's Memorandum in Opposition to Summary Judgment, Doreen Page 11 listed the predicate acts upon which it grounds its claims.*fn11 Page 12 The following list details the acts as they are alleged, described and supported by Doreen:*fn12

 
1) Spring 1994: Alleged Demand for a Bribe by Local 282 Officials
(Doreen claims this was extortion)
Aldo Collusi, Anthony Conti and Peter Menechino allegedly demanded a bribe from Doreen in order to secure labor peace. Pls.' Mem. In Opp'n at 29. In other words, Doreen alleges Local 282 demanded money and threatened to strike if Doreen did not comply. The original demand was allegedly $300,000 written on a piece of paper by Collusi given to Michael Loguidice. M. Loguidice Dep., Ex. 3A to Kramer Decl.[Doc. No. 338], at 61-62, 109-110. It is undisputed that Doreen did not pay the demand. Ex. 2A to Kramer Decl. at 3; Pls.' Mem. in Opp'n at 29; M. Loguidice Dep., Ex. 3A to Kramer Decl., at 375 (noting he did not give Colussi any money). Michael Loguidice testified that he said Collusi "is crazy" and threw the piece of paper out of the window of his car. Id. at 370. He then told his wife, Dorothy Loguidice, to "forget about it." Id. at 63. Michael Loguidice also testified that Colussi was the only person he remembers ever attempting to bribe him. Id. at 109.
2) July 1994: Alleged "Revised Demand for a Bribe" by Local 282 Officials
(Doreen claims this was extortion)
  Aldo Collusi, Anthony Conti and Peter Menechino allegedly "revised" their previous demand to almost $500,000 or $25 per load. Pls.' Damage Statement, Ex. 2A to Kramer Decl., at 3; Pls.' Mem. in Opp'n at 29. It is undisputed that Doreen refused to pay. Ex. 2A to Kramer Decl. at 3; Pls.' Mem. in Opp'n at 3. Doreen, however, alleges that all of the following acts stem from its refusal, to succumb to these threats. Id.; Joint Pretrial Order, Schedule B, at 16 (Dec. 4, 2001)(claiming that Defendants harassed Doreen in Page 13 an effort to put it out of business for its refusal to participate in the alleged "shakedown"). Notwithstanding this allegation, Dorothy Loguidice testified that she thought Conti was just "fishing" and that his alleged demand for money "was a joke." D. Loguidice Dep., Tab 10 to Levine Decl., at 315; D. Loguidice Dep., Ex. 3B to Kramer Decl., at 308-309 ("I considered the statement to be fishing, to see if I would go for the bait. . . . Dangling the bait, you know, the hot dog in front of the dog with the string.").
 
3) July 1994: Alleged Overpayment Coerced by Local 282 (Doreen claims this was mail fraud and extortion)
Doreen claims that Richard Kane, a Local 282 Shop Steward, entered information pertaining to "John Does" (i.e., people who did not exist) into the shop steward reports that were sent to the Funds and stamped "entered 3/22/95." Pls.' Mem. In Opp'n at 30. This, Doreen claims, resulted in payment for hours of individuals who were not Doreen's employees. Pls.' Mem. in Opp'n at 10. According to Doreen, the Defendants intentionally inflated amounts supposedly owing by using this John Doe strategy and then relying on these calculations to justify the December strike (outlined below). Pls.' Mem. in Opp'n at 38.
  In support, Doreen provides testimony from Clyde Perdue (equipment superintendent) and Jack Stuart. Perdue stated that there were times when he called companies like JCS to supply trucks and drivers. He said that Richard Kane had on at least one occasion filled in John Doe names and fake information when drivers who came to the job did not provide the correct information. Perdue Testimony, Ex. ID to Kramer Decl./ at 18-21. Jack Stuart testified that there were "ghost drivers" on the shop steward reports that "indicated that the shop steward just put Doe or fictitious name." Stuart Testimony, Ex. 3C to Kramer Decl., at 650.*fn13 He did not testify, however, that he believed the names were fictitious or that he had personal knowledge that the names were false but merely that the documentation indicated this. Page 14 There is also testimony from Stephanie Pantaliano and Lorraine McCool confirming that the John Doe information was included in the shop steward reports and that shop steward reports generally were compared with the JCS reported hours to determine discrepancies. Pantaliano Dep., Ex. 1G to Kramer Decl., at 150-51; McCool Dep., Ex. 1H to Kramer Decl., at 145-46. Neither Pantaliano nor McCool testified that they knew whether the John Doe information was included in this comparison. Id.
 
4) December 6, 1994: Strike Notice Sent by the Defendants Based on Allegedly False and Inflated Assertions
Resulting in Strike on December 13, 1994 (Doreen claims this was mail fraud and extortion)
Doreen alleges that Local 282 sent a strike notice, predicated on the assertion that Doreen had failed to make proper fringe benefit contributions, without disclosing that Doreen had not been notified that monies were due or provided an opportunity to cure. Pls.' Mem. In Opp'n at 30. Moreover, the strike notice did not detail the amount that was owed. Strike Notice, Ex IB to Kramer Decl; (Dec, 6, 1994). Further, Doreen alleges that this strike was not called because Doreen was delinquent in Fund contribution payments, but rather to retaliate against Doreen. Pls.' Mem. in Opp'n at 37.
  In support, Doreen provides testimony from (1) the Funds' Collection Coordinator stating that she was never asked, prior to the strike, whether Doreen was in arrears; and, (2) the President of Local 282, admitting that he was not sure whether the calculations of deficiencies were done before or after the strike. Id. Moreover, Doreen provides evidence that the actions taken by Local 282 did not conform to the Collective Bargaining Agreement, because the strike letter did not include an amount due, and because the strike occurred less than ten days after the letter was sent. Id. at 39-40, 42. (It is undisputed that the Collective Bargaining Agreement requires Local 282 to specify an amount due and to provide an employer ten days to cure the delinquency after notice.) Doreen argues — and supports with testimony — that the Defendants originally demanded from Doreen an "exaggerated and inflated" amount, $70,000, to end the work stoppage, Am. Compl. ¶ 47 (II) (E), but then, after the strike, claimed Doreen only owed $10,000. M. Loguidice Dep., Ex. 3D to Kramer Decl., at 387-388. Finally, Doreen submits that it was forced to pay the Funds approximately $10,000. Notwithstanding these allegations, Doreen has conceded that it owed at least $10,000 in contributions at the time of the strike. Jack C. Stuart Page 15 Dep., Ex. S to Bauman Decl., at 363-65 ("I believe JCS owed about $10,000 to $14,000.").
 
5) January 24, 1995: Alleged Pit Bull Threat by Local 282 (Doreen claims this was extortion)
Allegedly Peter Menechino, Jr., Peter Menechino, Sr., and three Local 282 agents arrived at the Brooklyn Water Tunnel Job site with a pit bull, Pls.' Mem. In Opp'n at 31. Subsequently, they threw Rodney Warwick off the job and stated that "[a]ny Local 813 man or non-union man would have to meet my lion." Id. Then the men released the pit bull, which attacked and bit one of the men. Id. This, Doreen claims, slowed down work and instilled injury, pain and suffering, and fear and intimidation in its workers. Pls.' Damage Statement, Ex. 2A to Kramer Decl., at 8-10; Pls.' Mem. in Opp'n at 31.
In support, Doreen points to testimony by Dorothy Loguidice, who stated that "[t]he whole thing was about Rodney's Teamsters 813 book. At this point, Rodney was not [Doreen's] employee, he was employed by someone else, but it happened on [Doreen's] job." D. Loguidice Dep., Ex. 3E to Kramer Decl., at 400.*fn14
6) February 23. 1995: Alleged Slowdown and Work Stoppage by Local 282
(Doreen claims this was extortion)
Doreen alleges that on February 23, 1995, Peter Menechino, Jr. caused a slowdown of Doreen's work and when Jack Stuart objected, Menechino, Jr. ordered trucks to stop loading and said "[n]ot a peep out of your mouth about Local 282 or Kelly, or I will drag you out into the street and kick the shit out of you." Pls.' Mem. in Opp'n at 31. Later, according to Doreen, Menechino, Sr. arrived and blocked the exit to the job. After that, George Finch and Lawrence Kudla allegedly arrived and threatened "[w]ho wants to fight? I want a good fight." Id,
  Doreen alleges that this was part of Defendants' retaliation for Doreen's refusal to pay bribes. In support, it provides testimony that suggests that this act involved a power struggle. See, e.g., D. Loguidice Dep., Ex. 3F to Kramer Decl., at 325-328 (characterizing the fight as "some sort of power struggle to see who was boss" because Doreen's Page 16 employees were directed not to get out of the truck but to wait for the laborer to provide the dump ticket while the shop stewards wanted the driver to get out of the truck and walk to find the laborer to get the dump ticket him or herself). There is also evidence, however, suggesting that the slowdown or work stoppage was due to Local 282's belief that money was owed the funds. See, e.g., D. Loguidice Dep., Ex. 3F to Kramer Decl., at 295 (explaining that she was present during the confrontations that occurred and "when they were yelling at them that he owed the fund a lot of money").
 
7) August 15, 1995: Alleged Threats and Intimidation to Create Fraudulent Records by Local 282
(Doreen claims this was mail fraud and extortion)
Allegedly, Local 282 employees required drivers to sign in multiple times, resulting in a fraudulent record that indicated drivers worked multiple 8-hour shifts. Pls.' Mem. In Opp'n at 32.
8) August 28, 1995: Alleged Threats and Intimidation to Create Fraudulent Records by Local 282
(Doreen claims this was mail fraud and extortion)
On August 28, 1995, Local 282 employees allegedly required drivers to sign phony entries in the shop steward report to result in a fraudulent amount of increased shifts. Id.
9-15) July 1996 — April 1997: Alleged Wire and Mail Fraud
It is undisputed that between July 1996 and April 1997, Local 282 and the Trustees sent out various letters and made various phone calls to contractors informing them that Doreen was in arrears and that the contractors may be held responsible. It is also undisputed that these letters were sent without prior notice to Doreen and without providing Doreen an opportunity to cure as required under the Collective Bargaining Agreement. Doreen alleges that these letters and phone calls resulted in loss of work. Id. at 32-34. Moreover, it alleges that these letters contained false allegations.
16) The ERISA Collection Action
  Although the ERISA collection action is not listed in the chart detailing the alleged predicates, Doreen repeatedly asserts in its Complaint and Memorandum in Opposition to Summary Judgment that the Trustees commenced a fraudulent lawsuit to recover contributions that were not owing. Am. Compl. ¶ 47 (II) (c); Pls.' Mem. in Opp'n at 14, Page 17 40. Doreen claims that it was singled out and placed under greater scrutiny than other employers. Id. Further, it alleges that the action was brought without following the litigation procedures set out in the Collective Bargaining Agreement, such as conducting an audit and providing a written report. Id. at 39-40. Lastly, it claims that the revised estimate of damages in the action was for one third the original estimate and that this shows that the action was commenced to punish Doreen for its refusal to capitulate to the Defendants' demands for kickbacks. Am. Compl. ¶ 47(11) (c).

  Doreen argues that the above acts constitute a pattern of racketeering activity as defined in 18 U.S.C. § 1961(1)(5). Am. Compl. ¶ 57.*fn15

 
C. Local 282 and the Trustees' Motions For Summary Judgment*fn16
  Local 282 and the Trustees move for summary judgment because they allege that Doreen cannot establish facts that would meet the legal elements of RICO. Local 282's Mem. in Supp. at 17; Trustees' Mem. in Supp. of Mot. for Summ. J. [Doc. No. 320] ("Trustees' Mem. in Supp.") at 20. Specifically, Local 282 claims that Doreen has failed to demonstrate (1) the requisite two predicate acts; (2) a pattern of racketeering activity; and (3) injury by reason of RICO violation. Trustees' Mem. in Supp. Page 18 at 22, 41, 42; Local 282's Mem. in Supp. at 19,' 29, 34. They assert that the undisputed facts now show that (1) Doreen was not an innocent, contract-abiding employer; and (2) that Local 282 and the Trustees engaged in lawful and appropriate enforcement efforts in response to Doreen's consistent underpayment of wages and fringe benefits. Local 282's Mem. in Supp. at 2. As part of their basis for asserting that Doreen has failed to demonstrate the two predicate acts necessary, the Defendants rely on the doctrine of collateral estoppel as it relates to the arbitrator's decision. As reviewed in the Procedural Background section, since the motions for summary judgment were made, this Court has conducted a trial in a related action, the ERISA Collection Action, Because the argument is essentially the same, the Court will also address whether any necessary findings or rulings or the parties' admissions from the ERISA Collection Action collaterally estop Doreen from making any of its current claims. See Broderick Wood Prods. Co. v. United States. 195 F.2d 433, 436 (10th Cir. 1952) ("[I]f the case is one appropriate for the entry of summary judgment, the fact that it may be granted on a ground different from that specified in the motion therefor does not warrant the disturbing of the judgment on appeal."); Board of Natl. Missions of Presbyterian Church in the United Statesv. Smith, 182 F.2d 362, 364-65 (7th Cir. 1950) ("The fact that judgment was granted on a reason different from that assigned by Page 19 the defendant in his summary judgment motion is immaterial, where, as here, the motion was properly granted on the undisputed facts shown and on an issue presented by plaintiff's complaint."); Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 133 (S.D.N.Y. 1968) (granting summary judgment despite the fact that no motion was made and reasoning that "[i]f defendants are entitled to summary judgment, it may properly be granted by the Court even without a written or formal motion"); but see John Deere Co. v. Am. Nat'l Bank. 809 F.2d 1190, 1191 (5th Cir. 1987) (holding that summary judgment on grounds not urged by movant and without adequate notice to non-movant was improper).

 III. DISCUSSION

  A, Legal Standard

  Summary judgment is warranted if, after reviewing the facts in the light most favorable to the nonmoving party, no genuine issues of material fact remain. Fed.R.Civ.P. 56(c); Liberty Lobby. 477 U.S. at 255. A "genuine" issue of fact is one that a reasonable jury, on the record before the court, could resolve in favor of either party. Id. at 255. In making its determination, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Id. The movant has the initial burden of production, which it can meet either by offering evidence to disprove an element of the non-movant's case or by showing the absence of any Page 20 material fact. The movant is not required to make an affirmative showing that there are no material facts in issue. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), Instead, the movant only has to show an "absence of evidence to support the non-moving party's case." Id. Once the movant has met its burden, the non-moving party must "go beyond the pleadings, and by [its] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing there is a material issue for trial.'" Id. at 323-324 (quoting Fed.R.Civ.P. 56(e)); Scotto, 143 F.3d at 114; United States v. Pent-R-Books, Inc. 538 F.2d 519, 529 (2d Cir. 1976) (stating that the non-moving party must "produce `significant probative evidence' tending to support it [sic] position'" (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968))). Summary judgment shall be granted "only if no reasonable trier of fact could find in favor of the nonmoving party." Sutera, 73 F.3d at 16 (citations omitted); Matsushita Elec. Indus., Ltd. v. Zenith Radio Corp. 475 U.S. 574, 586 (1986) ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.") (internal quotations and citations omitted); Taggart v. Time, 924 F.2d 43, 46 (2d Cir. 1991) (same).

  B. Are Any of Doreen's Claims Precluded?

  As alluded to above, prior decisions relevant to this case Page 21 along with Doreen's own admissions preclude Doreen from now asserting some of its claims.

 1. Collateral Estoppel Effect of Prior Proceedings

  a. The ERISA Collection Action

  The doctrine of collateral estoppel precludes relitigation of an issue of law or fact that was decided in a prior proceeding. Boauslavsky v. Kaplan, 159 F.3d 715, 719-720 (2d Cir. 1998). Collateral estoppel applies when four factors are met:
(1) the identical issue was raised in a previous proceeding;
(2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on the merits.
Id. at 720 (quotations and citations omitted).

  In the admittedly related ERISA Collection Action, *fn17 this Court found Doreen liable to the Trustees for underpayment of fund contributions to the pension plans under the governing Collective Bargaining Agreements for the period between 1993 and 1996, notwithstanding that the agreement was not signed and that the Trustees failed strictly to follow the Collective Bargaining Agreement's demand requirements. Trial Tr. Vol. 5 at 556:11-17, Page 22 559:1-15. This factual finding meets the elements noted above and, therefore, cannot be relitigated by Doreen now. That it was actually litigated and decided is clear from the fact that the Court held that Doreen owed contributions to the Funds for the time period in which the letters were sent and the phone calls were made. The parties had a full and fair opportunity to litigate the issue. This Court conducted a bench trial from May 12 through May 16, 2003. Both sides had equal amounts of time to present evidence and make arguments. This issue — whether Doreen actually owed funds to the Trustees — was the central issue of the case. Doreen was afforded the opportunity to provide defenses to the allegations and so presented them to the Court. The Court found none of these arguments persuasive. Moreover, this issue was "necessary to support a valid and final judgment on the merits," as it was an ERISA collection action for delinquent funds. The central issue was whether or not Doreen owed fund contributions, and the Court found that it did.

  Therefore, the fact that Doreen owed fund contributions to the Trustees for the period between 1993 and 1996 cannot be relitigated now even if the cause of action in the subsequent proceeding is different. Benjamin v. Traffic Executive Ass'n Eastern R.R.s, 869 F.2d 107, 111 (2d Cir. 1989) ("Under collateral estoppel, once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation Page 23 of the same issue on a different cause of action between the same parties." (quoting Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466-67 n.6 (1982))); Boquslavsky, 159 F.3d at 719-720.*fn18 Accordingly, any of Doreen's RICO claims that are negated by this factual finding cannot ...


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