Virga v. Concore Equipment, Inc. , 600 F. App'x 785 ( 2015 )

13-3970-cv
Virga v. Concore Equip., Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 29th day of January, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 GUIDO CALABRESI,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 JOHN J. VIRGA, in his fiduciary
13 capacity as Funds Director, MASON
14 TENDERS DISTRICT COUNCIL WELFARE
15 FUND, PENSION FUND, ANNUITY FUND, AND
16 TRAINING FUND, MASON TENDERS DISTRICT
17 COUNCIL OF GREATER NEW YORK,
18 Plaintiffs-Appellants,
19
20 -v.- 13-3970
21
22 CONCORE EQUIPMENT, INC., PATRICIA
23 RICE, a/k/a PAT RICE,
24 Defendants-Appellees.
25 - - - - - - - - - - - - - - - - - - - -X
26
27 FOR APPELLANTS: CHRISTOPHER A. SMITH, Trivella &
28 Forte, LLP, White Plains, N.Y.
29
1 FOR APPELLEES: DEKE W. BOND, Gorlick, Kravitz &
2 Listhaus, P.C., New York, N.Y.
3
4 Appeal from a judgment of the United States District
5 Court for the Southern District of New York (Sweet, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
8 AND DECREED that the judgment of the district court be
9 AFFIRMED.
10
11 Concore Equipment, Inc. and its owner, Patricia Rice
12 (collectively, “Concore”), appeal from the judgment of the
13 United States District Court for the Southern District of
14 New York (Sweet, J.), denying their motion to dismiss for
15 lack of subject matter jurisdiction, finding that Concore
16 breached a binding settlement agreement, and ruling that
17 Rice was personally liable under that agreement. As the
18 district court observed, “[t]his action is the culmination
19 of the effort of the Plaintiffs, beginning in 2003, to
20 enforce a collective bargaining agreement.” Mason Tenders
21 Dist. Council of Greater N.Y. v. Concore Equip., Inc., 2013
22 WL 5303756, at *1 (S.D.N.Y. Sept. 20, 2013). We assume the
23 parties’ familiarity with the underlying facts, the
24 procedural history, and the issues presented for review.
25
26 In 2003, Mason Tenders District Council of Greater New
27 York, Mason Tenders District Council Welfare Fund, Pension
28 Fund, Annuity Fund, and Training Fund, and John J. Virga, in
29 his capacity as the Director of the funds (collectively,
30 “Plaintiffs”), initiated an action against Concore and Rice
31 in her personal capacity to recover delinquent fringe
32 benefit contributions, dues checkoffs and political action
33 committee contributions. In 2006, during a court-ordered
34 settlement conference, the parties entered into a settlement
35 agreement (the “Settlement Agreement”) and the court
36 dismissed the case. Plaintiffs then filed a motion for
37 summary judgment to enforce the Settlement Agreement.
38
39 The district court dismissed that motion for lack of
40 jurisdiction (the “2008 Order”), reasoning that “[a]bsent a
41 provision in the order of dismissal obligating the parties
42 to comply with the terms of the settlement agreement or
43 incorporation of the terms of the agreement in the order,”
44 it was “without ancillary jurisdiction to enforcement the
45 agreement.” Mason Tenders Dist. Council, Welfare Fund,
46 Pension Fund, Annuity Fund, Training Program Fund v. Concore
2
1 Equip., Inc., 2008 WL 4443836, at *2 (S.D.N.Y. Sept. 29,
2 2008).
3
4 In 2010, Plaintiffs filed an action seeking to
5 reinstate the earlier litigation, enforce the Settlement
6 Agreement pursuant to the Labor Management Relations Act
7 (“LMRA”), hold Rice personally liable, and compel an audit
8 of Concore’s books under the terms of its collective
9 bargaining agreements. Plaintiffs moved for summary
10 judgment; Concore cross-moved to dismiss. In an opinion and
11 order dated November 10, 2011 (the 2011 Opinion and Order),
12 the court vacated the 2008 Order, reopened and consolidated
13 the earlier litigation, concluded the Settlement Agreement
14 was valid and binding, that Concore had breached the
15 Settlement Agreement, and that Plaintiffs were entitled to
16 an audit. See generally Mason Tenders Dist. Council of
17 Greater N.Y. v. Concore Equip., Inc., 2011 WL 5548912
18 (S.D.N.Y. Nov. 10, 2011). The court denied Plaintiffs’
19 summary judgment motion only to the extent that it sought to
20 hold Rice personally liable for the Settlement Agreement;
21 the court identified an issue of fact as to whether Rice
22 intended to be personally bound. Id. at *11-13.
23
24 In reaching its jurisdictional ruling, it concluded
25 that there was “ample evidence that the Court intended to
26 place its judicial imprimatur on the settlement, and, as a
27 result, the Court retain[ed] jurisdiction to enforce
28 the . . . [Settlement] Agreement.” Id. at *8. The court
29 determined that, in the alternative, it had jurisdiction
30 over the Settlement Agreement under LMRA § 301(a), which
31 provides:
32
33 Suits for violation of contracts between an
34 employer and a labor organization representing
35 employees in an industry affecting commerce as
36 defined in this chapter, or between any such labor
37 organizations, may be brought in any district
38 court of the United States having jurisdiction of
39 the parties, without respect to the amount in
40 controversy or without regard to the citizenship
41 of the parties.
42
43 29 U.S.C. § 185(a).
44
45 In January 2013, the district court conducted a bench
46 trial on the remaining issue of Rice’s personal liability
47 and ruled that Rice is personally liable under the
3
1 Settlement Agreement. Concore moved to dismiss based on
2 lack of subject matter jurisdiction; the district court
3 denied this motion with leave to submit additional briefing.
4
5 In May 2013, Concore moved, before the district court,
6 to dismiss for lack of jurisdiction on the grounds set forth
7 in the court’s 2008 Order. The district court denied this
8 motion, reaffirming the grounds set forth in the 2011
9 Opinion and Order, including holding that jurisdiction was
10 proper under the LMRA.
11
12 The record and this Court’s precedent foreclose the
13 district court’s conclusion that it retained jurisdiction to
14 enforce the terms of the Settlement Agreement based on
15 “ample evidence” that it “intended to place its judicial
16 imprimatur on the settlement,” Mason Tenders, 2011 WL
17 5548912, at *8. See StreetEasy, Inc. v. Chertok, 752 F.3d
18 298, 304-05 (2d Cir. 2014) (holding district court lacked
19 jurisdiction to enforce settlement agreement in previously
20 dismissed case when court had not made obligation to comply
21 with settlement’s terms part of dismissal order).
22
23 In dismissing the case in 2006, the district court
24 stated: “Pursuant to the pre-trial conference held before
25 the Court on 11-1-06 and the Court having been advised that
26 this action is settled, IT IS ORDERED that the Clerk of the
27 Court terminate all pending motions and this action is
28 dismissed.” Mason Tenders, 2011 WL 5548912, at *8 (internal
29 quotation marks omitted). The district court’s “order does
30 not expressly retain jurisdiction over enforcement of the
31 agreement, nor does it incorporate any of the terms of that
32 agreement. Instead, it merely acknowledges the existence of
33 the settlement that precipitated the dismissal.”
34 StreetEasy, 752 F.3d at 305. And, “the only order here was
35 that the suit be dismissed.” Id. at 306 (internal quotation
36 marks omitted).
37
38 However, the district court properly concluded in the
39 alternative that jurisdiction was proper pursuant to LMRA
40 § 301(a). The Settlement Agreement is a contract, see In re
41 World Trade Ctr. Disaster Site Litig., 754 F.3d 114, 121 (2d
42 Cir. 2014), and the Supreme Court rejected a narrow
43 interpretation of the meaning of the word “contract” as used
44 in § 301(a). See Retail Clerks Int’l Ass’n, Local Unions
45 Nos. 128 & 633 v. Lion Dry Goods, Inc., 369 U.S. 17, 25-28
46 (1962) (holding federal court should enforce strike
47 settlement agreement, which “resolved a controversy arising
4
1 out of, and importantly and directly affecting, the
2 employment relationship”); see also Drywall Tapers &
3 Pointers of Greater N.Y., Local 1974 v. Operative
4 Plasterers’ & Cement Masons’ Int’l Ass’n, 537 F.2d 669, 672-
5 73 (2d Cir. 1976).
6
7 The district court’s determination that Concore
8 breached the Settlement Agreement was also sound. The
9 handwritten Settlement Agreement, signed by the parties, is
10 a “manifestation of mutual assent [that is] sufficiently
11 definite to assure that the parties [were] truly in
12 agreement with respect to all material terms.” Tractebel
13 Energy Mktg., Inc. v. AEP Power Mktg., Inc., 487 F.3d 89, 95
14 (2d Cir. 2007) (internal quotation marks omitted). True,
15 the Settlement Agreement indicates that a “formal
16 stipulation [would be] executed and filed,” Mason Tenders,
17 2011 WL 5548912, at *6 (internal quotation marks omitted);
18 but the Settlement Agreement is not conditioned upon the
19 execution of a formal stipulation. Cf. Powell v. Omnicom,
20 497 F.3d 124, 129 (2d Cir. 2007) (“[T]he intention to commit
21 an agreement to writing, standing alone, will not prevent
22 contract formation. . . . [A] voluntary, clear, explicit,
23 and unqualified stipulation of dismissal entered into by the
24 parties in court and on the record is enforceable even if
25 the agreement is never reduced to writing, signed, or filed.
26 The settlement remains binding even if a party has a change
27 of heart between the time he agreed to the settlement and
28 the time those terms are reduced to writing.” (internal
29 quotation marks and citations omitted)).
30
31 Finally, we find no error in the district court’s
32 conclusion–-after a bench trial–-that Rice “consciously
33 signed the [Settlement] [A]greement as a defendant” and is
34 personally liable under that Agreement. Indeed, Rice signed
35 the Settlement Agreement twice: once on behalf of Concore
36 and once on her own behalf.
37
38 For the foregoing reasons, and finding no merit in
39 Concore’s other arguments, we hereby AFFIRM the judgment of
40 the district court.
41
42 FOR THE COURT:
43 CATHERINE O’HAGAN WOLFE, CLERK
44
5