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
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
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
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
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.
327], at 2, 15. Because the parties had agreed to bifurcate
liability from remedy, id., damages were not assessed at the
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
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
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
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
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
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
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
listed the predicate acts upon which it grounds its claims.*fn11
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
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
3) July 1994: Alleged Overpayment Coerced by
Local 282 (Doreen claims this was mail fraud and
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
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.
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.
4) December 6, 1994: Strike Notice Sent by
the Defendants Based on Allegedly False and
Resulting in Strike on December 13, 1994
(Doreen claims this was mail fraud and
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.
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
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"
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
(Doreen claims this was mail fraud and
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
(Doreen claims this was mail fraud and
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
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. ¶
C. Local 282 and the Trustees' Motions For Summary
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
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
(7th Cir. 1950) ("The fact that judgment was granted on a reason
different from that assigned by
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).
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
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)
B. Are Any of Doreen's Claims Precluded?
As alluded to above, prior decisions relevant to this case
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
(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
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,
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
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 ...