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,

on the 29th 4 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