     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




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