     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




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