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Richard Abondolo, As Chairman of the v. Jerry Wwhs Co.

December 1, 2011

RICHARD ABONDOLO, AS CHAIRMAN OF THE BOARD OF TRUSTEES OF UFCW LOCAL 342 HEALTH CARE FUND, RICHARD ABONDOLO, AS CHAIRMAN OF THE BOARD OF TRUSTEES OF UFCW LOCAL 342 ANNUITY FUND A/K/A UFCW LOCAL 342 SAVINGS AND 401(K) PLAN, RICHARD ABONDOLO, AS CHAIRMAN OF THE BOARD OF TRUSTEES OF UFCW LOCAL 342 SAFETY, EDUCATION, CULTURAL FUND, AND RICHARD ABONDOLO, AS CHAIRMAN OF THE BOARD OF TRUSTEES OF UFCW LOCAL 342 LEGAL FUND, PETITIONERS,
v.
JERRY WWHS CO., INC. D/B/A WEST WASHINGTON MEATS, RESPONDENT.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

This action arises from a petition ("Petition"), filed by Richard Abondolo as Chairman of the Board of Trustees for UFCW Local 342 Health Care Fund ("Health Care Fund"); UFCW Local 342 Annuity Fund a/k/a UFCW Local 342 Savings and 401(K) Plan ("401(K) Plan"); UFCW Local 342 Safety, Education, Cultural Fund ("SEC Fund"), and the UFCW Local 342 Legal Fund ("Legal Fund") (collectively the "Petitioners" or the "Funds"), seeking to confirm an arbitration award ("the Arbitration Award") entered against respondent, Jerry WWHS Co., Inc. d/b/a West Washington Meats ("the Respondent") following an arbitration hearing ("the Underlying Arbitration").

The Petitioners allege confirmation is proper pursuant to Section 9 of the Federal Arbitration Act, 9 U.S.C. § 9 ("Section 9"), Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, and Section 502 of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132. The Respondent cross moves to dismiss the Petition and/or vacate the Arbitration Award on the ground that its filing of a general assignment for the benefit of creditors imposed a de facto stay on the Underlying Arbitration and the instant proceeding. The Respondent also argues that it was not properly served in this action. For the reasons stated below, the Court denies the Respondent's motion to dismiss the Petition and/or to vacate the Arbitration Award and confirms the Arbitration Award.

I. BACKGROUND

Richard Abondolo is the Chairman of the Board of Trustees of the Funds. Three of the funds-the 401(K) Plan, the SEC Fund, and the Legal fund-are employee benefit plans within the meaning of 29 U.S.C. § 1002(2) and the Health Care Fund is an employee welfare benefit plan within the meaning of 29 U.S. § 1002(a). Respondent West Washington Meats is an employer who is party to a collective bargaining agreement ("the CBA") with UFCW Local 342 ("the Union"). Pursuant to the CBA, the Respondent was required to make certain contributions to the Funds in a timely manner, and, if the Respondent failed to make the requisite contributions, the CBA provided that the Funds were entitled to recover the outstanding contributions, plus interest, liquidated damages, reasonable attorney's fees, court costs, and disbursements. The CBA also mandates binding arbitration of disputes arising between the Union and/or the Funds and the Respondent.

On April 6, 2011, the Respondent executed an assignment for the benefit of creditors, assigning its estate to Douglas J. Pick ("Assignee"). (Deed of Assignment, Pick Aff., Ex. B.) The Deed of Assignment was filed in the Office of the Clerk of Kings County in New York on April 11, 2011. The Respondent's estate is currently being administered by the Assignee under the supervision of the New York State Supreme Court, Kings County, in an proceeding titled In the Matter of the General Assignment for the Benefit of Creditors of: JERRY WWHS CO., INC., d/b/a/ WEST WASHINGTON MEATS, Assignor --to-DOUGLAS J. PICK, Assignee, Index No, 8288/2011 ("the Assignment Proceeding").

Also on April 6, 2011, the Funds sent a letter advising the Respondent that an arbitration had been scheduled for April 27, 2011 to address its "failure and/or refusal to make proper and timely contributions and remit required reports to the [Funds] [for] April 2011". (Friedman Aff., Ex. A.) The arbitration took place as scheduled on April 27, 2011 (the "Underlying Arbitration") before arbitrator William Clarke ("Arbitrator Clarke"). The Respondent failed to appear at the arbitration.

After considering the evidence presented at the hearing, Arbitrator Clarke found that the Respondent violated the CBA by failing to make contributions to the Funds for the period of April 1, 2011 through April 30, 2011 and awarded a total of $5,828.90 in damages to the Funds, including $3,472 for unpaid contributions; interest in the amount of $52.08; liquidated damages in the amount of $704.82; attorneys' fees in the amount of $800; and arbitration fees in the amount of $800 ("the Arbitration Award"). (See Compl., Ex. A.)

On April 28, 2011, the Petitioners' counsel sent a letter to the Respondent demanding compliance with the terms of the Arbitration Award, which to date, the Respondent has failed to do. (See Friedman Aff., Ex. B.) Thus, the Petitioners commenced this action on May 9, 2011 seeking confirmation of the Arbitration Award, plus attorney's fees and costs incurred in bringing this action.

On May 12, 2011, the Summons and Petition were served on the Respondent through the New York Secretary of State at the Respondent's former address. According to the Assignee, because the Respondent was no longer a functioning business, the Assignee had arranged for the Respondent's mail to be forwarded to him through the postal service. Because of the delay, the Assignee did not receive the Summons and Complaint until June 1, 2011.

On June 2, 2011, the Respondent filed a motion to dismiss the Petition pursuant to Federal Rule of Civil Procedure 12 on two grounds. First, the Respondent contends that the Petition is subject to dismissal for insufficient service of process because the Petitioner effectuated service through the New York Secretary of State despite knowing that the address for the Respondent on file was no longer valid. Second, the Respondent seeks the dismissal of the Petition on the basis that the instant proceeding, and the Arbitration Award itself, are not valid because the general assignment for the benefit of creditors imposed a de facto stay on all proceedings against the Respondent, and therefore the Petitioners should have submitted their claim for unpaid contributions to the Assignment Proceeding. Although not characterized as such by the Respondent, because the Respondent is seeking a determination as to the arbitrability of the underlying dispute in light of the general assignment for the benefit of creditors, the Court construes the Respondent's motion to dismiss also as a motion to vacate the Arbitration Award.

The Court will address the merits of the Respondent's motion, as well as the Petition to confirm the Arbitration Award separately.

II. MOTION TO DISMISS THE PETITION AND/OR VACATE THE ARBITRATION AWARD

A. Whether the Petition Should be Dismissed for Insufficient Service of Process

The Respondent asserts that the Court should dismiss the Petition for insufficient service of process because the Petitioners effectuated service on the Respondent through the New York Secretary of State, rather than through the Assignee. The Court disagrees.

Service of process on a corporation within a judicial district of the United States may be completed either by serving a copy of the summons and the complaint, or in this case the petition, "to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process . . . [and] mailing a copy of each to the defendant" or by "following the state law for serving summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Fed. R. Civ. P. 4(e)(1). ...


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