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Mason Tenders District Council of Greater New York v. Concore Equipment Inc.

United States District Court, Second Circuit

September 20, 2013

CONCORE EQUIPMENT INC., et al., Defendants.

Andrew A. Gorlick, Esq., Deke W. Bond, Esq., GORLICK, KRAVITZ & LISTHAUS, P.C., New York, NY, Attorneys for Plaintiffs.

Christopher A. Smith, Esq., TRIVELLA & FORTE LLP, White Plains, NY, Attorneys for Defendants.


ROBERT W. SWEET, District Judge.

Defendants Concore Equipment, Inc. ("Concore") and Patricia Rice ("Rice" and, collectively, "Defendants") have moved pursuant to Rules 12(b) (1) and 56 of the Federal Rules of Civil Procedure ("Rule 12(b)(1)" and "Rule 56", respectively) to dismiss the complaint filed by plaintiffs Mason Tenders District Council of Greater New York (the "Union"), Mason Tenders District Council Welfare Fund, Pension Fund, Annuity Fund and Training Fund (the "Funds"), and John J. Virga, in his fiduciary capacity as director of the Funds (the "Director" and, collectively, "Plaintiffs"). Upon the conclusions set forth below, the motion is denied.

This action is the culmination of the effort of the Plaintiffs, beginning in 2003, to enforce a collective bargaining agreement, an effort presenting the procedural hurdles described below.

Prior Proceedings

The Plaintiffs initiated an action against Defendants in 2003 seeking to recover delinquent fringe benefit contributions, dues checkoffs and Political Action Committee contributions from Defendants (the "2003 Litigation"). On November 1, 2006, during a Court ordered settlement conference before the Court, the parties entered into a handwritten Settlement Agreement in which Defendants agreed to pay Plaintiffs $288, 000.00 over the course of several months and to execute a formal stipulation. On November 29, 2006, the Court dismissed the case pursuant to the settlement conference held on November 6, 2009. The Defendants never negotiated or signed the formal stipulation and, further, did not make any payment under the Settlement Agreement.

Plaintiffs filed a motion for summary judgment on March 13, 2008 to enforce the Settlement Agreement. The Court dismissed that motion for lack of subject matter jurisdiction on September 29, 2009 on the basis that the terms of settlement had not been incorporated into the dismissal order (the "September 29 Order").

Plaintiffs commenced the present action against Defendants in May 2010, seeking (i) to enforce the Settlement Agreement because it is a contract between a union and employer under section 301 of the Labor Management Relations Act ("LMRA"), (ii) reinstatement of the prior litigation and (iii) to compel Defendants to allow the Funds to conduct an audit of Concore's books and records from May 25, 2004 to the present under the terms of collective bargaining agreements between the Union and Defendants.

Plaintiffs moved for partial summary judgment on its claims that Defendants breached the Settlement Agreement and that the Funds were entitled to an audit of Concore's books and records. Defendants cross-moved seeking dismissal of Plaintiffs' Complaint.

On November 10, 2011, the Court issued an opinion and order (the "November 10 Opinion and Order") that granted Plaintiffs' motion for summary judgment in part, and held that the Funds were entitled to the audit requested under a valid and enforceable collective bargaining agreement and that Concore Equipment had breached the Settlement Agreement. The Court denied Plaintiffs' summary judgment as to Rice for breach of the Settlement Agreement because a fact issue existed as to personal liability and Rice's intent to be personally bound.

In the November 10 Opinion and Order, the Court determined that the September 29 Order was entered erroneously because there was ample evidence that the Court intended to place its judicial imprimatur on the settlement, and, as a result, the Court retains jurisdiction to enforce the November 1, 2006 Settlement Agreement. The Court vacated the September 29 Order, reopened the 2003 Litigation and consolidated that action with the instant action.

The November 10 Opinion and Order also held that the Court had independent jurisdiction over the 2010 Litigation because Plaintiffs breach of contract and audit claims arose from the Settlement Agreement and the collective bargaining agreements, respectively, because the contracts were between the Union and Defendants, thereby providing jurisdiction under LMRA ยง 301(a).

On January 28, 2013, the Court conducted a one-day bench trial on the sole remaining issue of personal liability against Rice. Following testimony of four witnesses, including Rice herself, Defendants' counsel moved to dismiss the case. The Court denied that motion. The Court held that Rice is bound by, and personally liable under, the Settlement Agreement. The Court also addressed the issue of subject matter jurisdiction and stated, "[w]ell, with respect to the issue of jurisdiction, I did seek to deal with that in the 2010 [summary ...

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