UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
February 17, 2006
IN THE MATTER OF THE APPLICATION OF TRI-BUILT CONSTRUCTION, INC., PETITIONER,
THE NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS PENSION FUND, NEW YORK: CITY DISTRICT COUNCIL OF CARPENTERS WELFARE FUND, NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS VACATION FUND, NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS ANNUITY FUND, NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS APPRENTICESHIP, JOURNEYMAN RETRAINING, EDUCATIONAL AND INDUSTRY FUND, AND NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS CHARITY FUND, NEW YORK CITY AND VICINITY CARPENTERS LABOR-MANAGEMENT CORPORATION, MICHAEL J. FORDE AND JOSEPH OLIVIERI, AS TRUSTEES, RESPONDENTS.
The opinion of the court was delivered by: William H. Pauley III, District Judge
MEMORANDUM AND ORDER
On January 10, 2005, Tri-Built Construction, Inc. ("Tri-Built") filed a verified petition in New York State Supreme Court seeking to stay an arbitration demanded by Respondents, certain benefit funds of the local union affiliate of the United Brotherhood of Carpenters and Joiners of America (the "UBCJA"). Respondents sought to arbitrate their claim that Tri-Built failed to remit fringe benefit contributions in 2004. Respondents removed TriBuilt's state court action to this Court. Thereafter, Tri-Built moved to permanently stay the arbitration and Respondents moved to dismiss the petition and compel arbitration.
By Memorandum and Order dated May 17, 2005, this Court denied Tri-Built's motion and granted Respondents' motions. Tri-Built Constr., Inc. v. New York City Dist. Council of Carpenters Pension Fund, No. 05 Civ. 0694 (WHP), 2005 WL 1265865 (S.D.N.Y. May 17, 2005). In so doing, this Court rejected Tri-Built's argument that Respondents were precluded from pursuing arbitration because they had not first attempted to negotiate their claim, as required by a collective bargaining agreement that Tri-Built entered with the District Council of New York City and Vicinity, the local affiliate of the UBCJA, for the period encompassing 2004 (the "Independent Agreement"). Tri-Built Constr., 2005 WL 1265865, at *2. Tri-Built did not dispute that it was a signatory to and bound by the Independent Agreement.
The parties commenced their arbitration on January 20, 2006. That same day, Tri-Built filed this action against Respondents with a new petition to stay arbitration. However, Tri-Built relies on a theory not advanced in the earlier action. Specifically, according to the Petition, Tri-Built recently discovered that it did not sign an Independent Agreement for the period July 1, 2001 through June 30, 2006 and claims that there is no agreement to arbitrate.
Thus, the instant action is an attempt to utilize newly discovered evidence to obtain the same relief Tri-Built sought and this Court denied in the previous action. In that regard, the petition should have been brought as a post-judgment motion in the earlier action pursuant to Federal Rule of Civil Procedure 60(b)(2), and this Court treats it as such. See Zoriano Sanchez v. Caribbean Carriers Ltd., 552 F.2d 70, 73 (2d Cir. 1977) ("If plaintiffs-appellants' position now is that these new factual allegations constitute newly discovered evidence . . ., the correct procedure was not to institute the new action . . . but to move in the district court . . . for an order relieving plaintiffs-appellants from its final order pursuant to F.R.C.P. 60(b).").
Rule 60(b)(2) provides that a court may modify or vacate a final judgment because of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." In order to obtain relief under Rule 60(b)(2), a party must demonstrate that (1) the newly discovered evidence existed at the time of the dispositive proceeding, (2) the party was justifiably ignorant of the evidence despite due diligence, (3) the evidence is admissible and "of such importance that it probably would have changed the outcome," and (4) the evidence is not "merely cumulative or impeaching." United States v. Int'l Bhd . of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001).
Tri-Built cannot establish justifiable ignorance of the fact that it did not sign an Independent Agreement for 2001-2006 -- a matter squarely within its own knowledge. In fact, Tri-Built's petition in the earlier action assumed the existence of such an agreement and alleged a breach of that agreement as a basis for staying arbitration. If Tri-Built's allegation is true, Tri-Built could have and should have discovered that no such agreement existed well before bringing the instant action, and certainly within the time limits prescribed by Rule 60(b)(2). Tri-Built's failure to investigate the Independent Agreement or assert its non-existence in the earlier action precludes Tri-Built from relitigating that action on the basis of purportedly newly discovered evidence. See Nemaizer v. Baker, 793 F.2d 58, 62 (2d Cir. 1986); S.E.C. v. U.S. Envtl. Inc., No. 94 Civ. 6608 (PKL), 2004 WL 2274813, at *3 (S.D.N.Y. Oct. 8, 2004).*fn1
In any event, it is unlikely that the absence of an express agreement for 2001 through 2006 would have changed the result in the prior action or justifies granting the relief sought in this action. There is no dispute that Tri-Built and the District Council entered into a valid Independent Agreement for the period July 1, 1996 through June 30, 2001. (Respondents' Ex. C.) That agreement requires the parties to arbitrate all disputes concerning the payments to the benefit funds and, by its terms, renews automatically unless cancelled by either party with proper notice to the other. (Respondents' Ex. C, Art. XII § 2 & Art. XIX.) Thus, even if Tri-Built did not sign a new Independent Agreement for the 2001-2006 period, the prior agreement maintains its vitality and requires arbitration of their present dispute.
Tri-Built also advances other arguments for vacating the earlier judgment and staying the arbitration. Because those arguments are not premised on newly discovered evidence, they are properly considered under the rubric of a motion for reconsideration pursuant to Local Rule 6.3. However, to the extent Tri-Built contends that the arbitration should be stayed because the Benefit Funds have commenced a proceeding in state court against Tri-Built's principals, that argument was rejected by this Court in its earlier opinion, Tri-Built Constr., 2005 WL 1265865, at *2, and Tri-Built has not cited any controlling decisions or facts that this Court overlooked, cf. Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) ("[R]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked -- matters in other words, that might reasonably be expected to alter the conclusion reached by the court.") To the extent Tri-Built contends that the arbitration should be stayed because its agreement with the UBCJA does not require arbitration for a dispute such as this, that argument was not raised in the earlier action. "[A] motion for reconsideration cannot assert new arguments or claims which were not before the court on the original motion." Koehler v. Bank of Bermuda, Ltd., No. M18-302 (CSH), 2005 WL 1119371, at *1 (S.D.N.Y. May 10, 2005).
For the foregoing reasons, Tri-Built's petition to stay arbitration is denied. The Clerk of the Court is directed to mark this case closed.
WILLIAM H. PAULEY III U.S.D.J.