13-1801
Richardson v. Laws Construction Corp.
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 13th day of February, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 CHRISTOPHER F. DRONEY,
8 Circuit Judges.*
9
10 - - - - - - - - - - - - - - - - - - - -X
11 DENISE RICHARDSON, as a Trustee and as a
12 Fiduciary of Local 282 Welfare, Pension,
13 Annuity, Job Training and Vacation and
14 Sick Leave Trust Fund, THOMAS PIALI, as
15 a Trustee and as a Fiduciary of Local
16 282 Welfare, Pension, Annuity, Job
17 Training and Vacation and Sick Leave
18 Trust Fund, MARC HERBST, as a Trustee
19 and as a Fiduciary of Local 282 Welfare,
20 Pension, Annuity, Job Training and
*
Judge Denny Chin, a member of the original panel,
subsequently recused himself. The remaining two members of the
panel, who are in agreement, decide this appeal in accordance
with Internal Operating Procedure E(b) of the Rules of the United
States Court of Appeals for the Second Circuit. See 28 U.S.C. §
46(d); cf. United States v. Desimone, 140 F.3d 457, 458 (2d Cir.
1998).
1
1 Vacation and Sick Leave Trust Fund,
2 JOSEPH FERRARA, as a Trustee and as a
3 Fiduciary of Local 282 Welfare, Pension,
4 Annuity, Job Training and Vacation and
5 Sick Leave Trust Fund, FRANK FINKEL, as
6 a Trustee and as a Fiduciary of Local
7 282 Welfare, Pension, Annuity, Job
8 Training and Vacation and Sick Leave
9 Trust Fund, ANTHONY D’AQUILA, as a
10 Trustee and as a Fiduciary of Local 282
11 Welfare, Pension, Annuity, Job Training
12 and Vacation and Sick Leave Trust Fund,
13 DOMINICK MARROCCO, as a Trustee and as a
14 Fiduciary of Local 282 Welfare, Pension,
15 Annuity, Job Training and Vacation and
16 Sick Leave Trust Fund, ANTHONY PIROZZI,
17 as a Trustee and as a Fiduciary of Local
18 282 Welfare, Pension, Annuity, Job
19 Training and Vacation and Sick Leave
20 Trust Fund, LOUIS BISIGNANO, as a
21 Trustee and as a Fiduciary of Local 282
22 Welfare, Pension, Annuity, Job Training
23 and Vacation and Sick Leave Trust Fund,
24 THOMAS GESUALDI, as a Trustee and as a
25 Fiduciary of Local 282 Welfare, Pension,
26 Annuity, Job Training and Vacation and
27 Sick Leave Trust Fund,
28
29 Plaintiffs-Appellees,
30
31 -v.- 13-1801-cv
32
33 LAWS CONSTRUCTION CORP.,
34
35 Defendant-Appellant,
36 - - - - - - - - - - - - - - - - - - - -X
37
38 FOR APPELLANT: PAUL T. VINK, Andrew Greene &
39 Associates, P.C., White Plains,
40 NY.
41
2
1 FOR APPELLEES: JAMES ROBERT GRISI (Scott P.
2 Trivella, on the brief),
3 Trivella & Forte, LLP, White
4 Plains, NY.
5
6 Appeal from a judgment of the United States District
7 Court for the Southern District of New York (Cote, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the judgment of the district court be
11 AFFIRMED.
12
13 Laws Construction Corporation (“Laws”) appeals from the
14 judgment of the United States District Court for the
15 Southern District of New York (Cote, J.), granting summary
16 judgment in favor of the trustees and fiduciaries of the
17 Local 282 Welfare, Pension, Annuity, Job Training, and
18 Vacation and Sick Leave Trust Funds (“Trustees”) on their
19 claim under the Employee Retirement Income Security Act
20 (“ERISA”), 29 U.S.C. §§ 1001 et seq., to recover unpaid
21 contributions to certain union benefit funds (“Funds”). Our
22 June 4, 2012 Summary Order (“2012 Summary Order”) vacated a
23 grant of summary judgment in favor of the Trustees and
24 remanded for the district court to ascertain whether Laws
25 complied with Section 6(D) (the “no less favorable” clause)
26 of the Collective Bargaining Agreement (“CBA”) by ensuring
27 that the employees of subcontractor Jo-Di Trucking (“Jo-Di”)
28 received the monetary equivalent of certain Fund
29 contributions. Gesualdi v. Laws Const. Corp., 485 F. App’x
30 450, 453-54 (2d Cir. 2012). On remand, Laws produced no new
31 evidence that the employees had received the payments or
32 that Laws had otherwise complied with Section 6(D); so the
33 district court again granted summary judgment to the
34 Trustees. On appeal, Laws argues that the Trustees did not
35 adduce sufficient evidence that Jo-Di’s drivers did not
36 receive the necessary payments.1 Laws also challenges the
37 district court’s award of attorney’s fees.
1
In addition, Laws argues that the Trustees lack
standing to bring suit. However, the CBA assigns the Funds
an active role in policing compliance with the “no less
favorable” clause; the Trustees therefore may sue to collect
any delinquency arising from a breach.
3
1 1. The district court’s grant of summary judgment is
2 reviewed de novo. See Gonzalez v. City of Schenectady, 728
3 F.3d 149, 154 (2d Cir. 2013). “Summary judgment is
4 appropriate if there is no genuine dispute as to any
5 material fact and the moving party is entitled to judgment
6 as a matter of law.” Id. In making this determination, we
7 “resolve all ambiguities and draw all permissible factual
8 inferences in favor of the party against whom summary
9 judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137
10 (2d Cir. 2003) (internal quotation marks and citation
11 omitted). Summary judgment is appropriate “[w]here the
12 record taken as a whole could not lead a rational trier of
13 fact to find for the non-moving party.” Matsushita Elec.
14 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
15
16 The CBA requires an employer that hires outside trucks
17 or equipment to notify the union weekly of the amount of
18 outside labor supplied (including the number of trucks,
19 equipment, and work hours), and to report monthly the number
20 of hours worked by each subcontractor employee. Laws has
21 never disputed that it failed to report its use of Jo-Di
22 drivers to the union. Because Laws improperly withheld this
23 information, the district court ruled that Laws bore the
24 burden of demonstrating compliance with the “no less
25 favorable” clause. Gesualdi v. Laws Const. Corp., 759 F.
26 Supp. 2d 432, 443 (S.D.N.Y. 2010).
27
28 Our 2012 Summary Order remanded for the district court
29 to ascertain whether Laws had complied with the “no less
30 favorable” clause by ensuring that Jo-Di “directly provided
31 its employees conforming wages, conditions, and benefits;
32 contributed to other funds similar to the Funds on its
33 employees’ behalf; paid its employees a lump-sum at least
34 equal to the value of the contribution to the Funds for
35 Laws’s employees; or provided at least equal wages,
36 conditions, and benefits some other way.” Gesualdi, 485 F.
37 App’x at 453. However, we did not question the district
38 court’s conclusion that Laws, which had sole knowledge and
39 custody of its agreement with Jo-Di, had to show that its
40 arrangement complied with the “no less favorable” clause of
41 the CBA. The refusal of Laws to respond to the question
42 posed by the district court and required by our remand
43 affords no basis on appeal for disturbing the judgment
44 entered in the district court.
4
1 2. When trustees prevail in an ERISA action for unpaid
2 contributions, 29 U.S.C. § 1132(g)(2)(D) mandates an award
3 of “reasonable attorney’s fees and costs of the action, to
4 be paid by the defendant,” and we review a fee award under
5 this provision for abuse of discretion. Chambless v.
6 Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1058
7 (2d Cir. 1989). The deference exercised in an abuse of
8 discretion review “takes on special significance when
9 reviewing fee decisions because the district court, which is
10 intimately familiar with the nuances of the case, is in a
11 far better position to make such decisions than is an
12 appellate court, which must work from a cold record.”
13 McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 416 (2d Cir.
14 2010) (internal quotation marks and brackets omitted). Upon
15 reviewing the record, we see no reason to upset the findings
16 of the district court. Nor do we see any basis on which to
17 conclude that the court committed an error of law or abused
18 its discretion.
19
20 For the foregoing reasons, and finding no merit in
21 Laws’ other arguments, we AFFIRM the judgment of the
22 district court.
23
24
25 FOR THE COURT:
26 CATHERINE O’HAGAN WOLFE, CLERK
27
5