13-3970-cv Virga v. Concore Equip., Inc.



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C** **ITATION TO A SUMMARY ORDER FILED**

**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**

**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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 .** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 29 th** **day of January, two thousand fifteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **GUIDO CALABRESI,** 7 **RICHARD C. WESLEY,** 8 **Circuit Judges**

**.** 9 10
- - - - - - - - - - - - - - - - - - - -X 11 **JOHN J. VIRGA, in his fiduciary** 12 **capacity as Funds Director, MASON** 13
**TENDERS DISTRICT COUNCIL WELFARE** 14 **FUND, PENSION FUND, ANNUITY FUND, AND** 15 **TRAINING FUND, MASON TENDERS DISTRICT** 16 **COUNCIL OF GREATER NEW YORK,** 17 **Plaintiffs-Appellants ,**  18 19 **-v.- 13-3970** 20 21 **CONCORE EQUIPMENT, INC., PATRICIA** 22 **RICE, a/k/a PAT RICE,** 23 **Defendants-Appellees**

**.** 24
- - - - - - - - - - - - - - - - - - - -X 25 26
**FOR APPELLANTS:** CHRISTOPHER A. SMITH, Trivella & 27 Forte, LLP, White Plains, N.Y. 28 29**FOR APPELLEES:** DEKE W. BOND, Gorlick, Kravitz & 1 Listhaus, P.C., New York, N.Y. 2 3 Appeal from a judgment of the United States District 4 Court for the Southern District of New York (Sweet, J. ). 5 6 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 7 **AND DECREED**that the judgment of the district court be 8
**AFFIRMED**

. 9 10 Concore Equipment, Inc. and its owner, Patricia Rice 11 (collectively, “Concore”), appeal from the judgment of the 12 United States District Court for the Southern District of 13 New York (Sweet, J. ), denying their motion to dismiss for 14 lack of subject matter jurisdiction, finding that Concore 15 breached a binding settlement agreement, and ruling that 16 Rice was personally liable under that agreement. As the 17 district court observed, “[t]his action is the culmination 18 of the effort of the Plaintiffs, beginning in 2003, to 19 enforce a collective bargaining agreement.” Mason Tenders 20 Dist. Council of Greater N.Y. v. Concore Equip., Inc. , 2013 21 WL 5303756, at *1 (S.D.N.Y. Sept. 20, 2013). We assume the 22 parties’ familiarity with the underlying facts, the 23 procedural history, and the issues presented for review. 24 25 In 2003, Mason Tenders District Council of Greater New 26 York, Mason Tenders District Council Welfare Fund, Pension 27 Fund, Annuity Fund, and Training Fund, and John J. Virga, in 28 his capacity as the Director of the funds (collectively, 29 “Plaintiffs”), initiated an action against Concore and Rice 30 in her personal capacity to recover delinquent fringe 31 benefit contributions, dues checkoffs and political action 32 committee contributions. In 2006, during a court-ordered 33 settlement conference, the parties entered into a settlement 34 agreement (the “Settlement Agreement”) and the court 35 dismissed the case. Plaintiffs then filed a motion for 36 summary judgment to enforce the Settlement Agreement. 37 38 The district court dismissed that motion for lack of 39 jurisdiction (the “2008 Order”), reasoning that “[a]bsent a 40 provision in the order of dismissal obligating the parties 41 to comply with the terms of the settlement agreement or 42 incorporation of the terms of the agreement in the order,” 43 it was “without ancillary jurisdiction to enforcement the 44 agreement.” Mason Tenders Dist. Council, Welfare Fund, 45 Pension Fund, Annuity Fund, Training Program Fund v. Concore 46

2Equip., Inc. , 2008 WL 4443836, at *2 (S.D.N.Y. Sept. 29, 1 2008). 2 3 In 2010, Plaintiffs filed an action seeking to 4 reinstate the earlier litigation, enforce the Settlement 5 Agreement pursuant to the Labor Management Relations Act 6 (“LMRA”), hold Rice personally liable, and compel an audit 7 of Concore’s books under the terms of its collective 8 bargaining agreements. Plaintiffs moved for summary 9 judgment; Concore cross-moved to dismiss. In an opinion and 10 order dated November 10, 2011 (the 2011 Opinion and Order), 11 the court vacated the 2008 Order, reopened and consolidated 12 the earlier litigation, concluded the Settlement Agreement 13 was valid and binding, that Concore had breached the 14 Settlement Agreement, and that Plaintiffs were entitled to 15 an audit. See generallyMason Tenders Dist. Council of 16 Greater N.Y. v. Concore Equip., Inc. , 2011 WL 5548912 17 (S.D.N.Y. Nov. 10, 2011). The court denied Plaintiffs’ 18 summary judgment motion only to the extent that it sought to 19 hold Rice personally liable for the Settlement Agreement; 20 the court identified an issue of fact as to whether Rice 21 intended to be personally bound. Id. at *11-13. 22 23 In reaching its jurisdictional ruling, it concluded 24 that there was “ample evidence that the Court intended to 25 place its judicial imprimatur on the settlement, and, as a 26 result, the Court retain[ed] jurisdiction to enforce 27 the . . . [Settlement] Agreement.” Id. at *8. The court 28 determined that, in the alternative, it had jurisdiction 29 over the Settlement Agreement under LMRA § 301(a), which 30 provides: 31 32 Suits for violation of contracts between an 33 employer and a labor organization representing 34 employees in an industry affecting commerce as 35 defined in this chapter, or between any such labor 36 organizations, may be brought in any district 37 court of the United States having jurisdiction of 38 the parties, without respect to the amount in 39 controversy or without regard to the citizenship 40 of the parties. 41 42 29 U.S.C. § 185(a). 43 44 In January 2013, the district court conducted a bench 45 trial on the remaining issue of Rice’s personal liability 46 and ruled that Rice is personally liable under the 47

3Settlement Agreement. Concore moved to dismiss based on 1 lack of subject matter jurisdiction; the district court 2 denied this motion with leave to submit additional briefing. 3 4 In May 2013, Concore moved, before the district court, 5 to dismiss for lack of jurisdiction on the grounds set forth 6 in the court’s 2008 Order. The district court denied this 7 motion, reaffirming the grounds set forth in the 2011 8 Opinion and Order, including holding that jurisdiction was 9 proper under the LMRA. 10 11 The record and this Court’s precedent foreclose the 12 district court’s conclusion that it retained jurisdiction to 13 enforce the terms of the Settlement Agreement based on 14 “ample evidence” that it “intended to place its judicial 15 imprimatur on the settlement,” Mason Tenders , 2011 WL 16 5548912, at *8. SeeStreetEasy, Inc. v. Chertok , 752 F.3d 17 298, 304-05 (2d Cir. 2014) (holding district court lacked 18 jurisdiction to enforce settlement agreement in previously 19 dismissed case when court had not made obligation to comply 20 with settlement’s terms part of dismissal order). 21 22 In dismissing the case in 2006, the district court 23 stated: “Pursuant to the pre-trial conference held before 24 the Court on 11-1-06 and the Court having been advised that 25 this action is settled, IT IS ORDERED that the Clerk of the 26 Court terminate all pending motions and this action is 27 dismissed.” Mason Tenders , 2011 WL 5548912, at *8 (internal 28 quotation marks omitted). The district court’s “order does 29 not expressly retain jurisdiction over enforcement of the 30 agreement, nor does it incorporate any of the terms of that 31 agreement. Instead, it merely acknowledges the existence of 32 the settlement that precipitated the dismissal.” 33 StreetEasy , 752 F.3d at 305. And, “the only order here was 34 that the suit be dismissed.” Id. at 306 (internal quotation 35 marks omitted). 36 37 However, the district court properly concluded in the 38 alternative that jurisdiction was proper pursuant to LMRA 39 § 301(a). The Settlement Agreement is a contract, seeIn re 40 World Trade Ctr. Disaster Site Litig. , 754 F.3d 114, 121 (2d 41 Cir. 2014), and the Supreme Court rejected a narrow 42 interpretation of the meaning of the word “contract” as used 43 in § 301(a). SeeRetail Clerks Int’l Ass’n, Local Unions 44 Nos. 128 & 633 v. Lion Dry Goods, Inc. , 369 U.S. 17, 25-28 45 (1962) (holding federal court should enforce strike 46 settlement agreement, which “resolved a controversy arising 47

4out of, and importantly and directly affecting, the 1 employment relationship”); see alsoDrywall Tapers & 2 Pointers of Greater N.Y., Local 1974 v. Operative 3 Plasterers’ & Cement Masons’ Int’l Ass’n , 537 F.2d 669, 672- 4 73 (2d Cir. 1976). 5 6 The district court’s determination that Concore 7 breached the Settlement Agreement was also sound. The 8 handwritten Settlement Agreement, signed by the parties, is 9 a “manifestation of mutual assent [that is] sufficiently 10 definite to assure that the parties [were] truly in 11 agreement with respect to all material terms.” Tractebel 12 Energy Mktg., Inc. v. AEP Power Mktg., Inc. , 487 F.3d 89, 95 13 (2d Cir. 2007) (internal quotation marks omitted). True, 14 the Settlement Agreement indicates that a “formal 15 stipulation [would be] executed and filed,” Mason Tenders

, 16 2011 WL 5548912, at *6 (internal quotation marks omitted); 17 but the Settlement Agreement is not conditioned upon the 18 execution of a formal stipulation. Cf. Powell v. Omnicom

, 19 497 F.3d 124, 129 (2d Cir. 2007) (“[T]he intention to commit 20 an agreement to writing, standing alone, will not prevent 21 contract formation. . . . [A] voluntary, clear, explicit, 22 and unqualified stipulation of dismissal entered into by the 23 parties in court and on the record is enforceable even if 24 the agreement is never reduced to writing, signed, or filed. 25 The settlement remains binding even if a party has a change 26 of heart between the time he agreed to the settlement and 27 the time those terms are reduced to writing.” (internal 28 quotation marks and citations omitted)). 29 30 Finally, we find no error in the district court’s 31 conclusion–-after a bench trial–-that Rice “consciously 32 signed the [Settlement] [A]greement as a defendant” and is 33 personally liable under that Agreement. Indeed, Rice signed 34 the Settlement Agreement twice: once on behalf of Concore 35 and once on her own behalf. 36 37 For the foregoing reasons, and finding no merit in 38 Concore’s other arguments, we hereby **AFFIRM** the judgment of 39 the district court. 40 41 FOR THE COURT: 42 CATHERINE O’HAGAN WOLFE, CLERK 43 44

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