17-1184(L)
Silverman v. Teamster Local 210

                              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.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
6th day of June, two thousand eighteen.

Present:    ROSEMARY S. POOLER,
            RAYMOND J. LOHIER, JR.,
                        Circuit Judges,
            RICHARD J. SULLIVAN,1
                        District Judge.
________________________________________________________________

LEON SILVERMAN, AS A TRUSTEE OF THE UNION MUTUAL,

                          Plaintiff-Appellee-Cross-Appellant,

LOUIS FLACKS, TRUSTEE OF THE UNION MUTUAL MEDICAL FUND, PAUL
BERKMAN, TRUSTEE OF THE UNION MUTUAL MEDICAL FUND, UNION MUTUAL
MEDICAL FUND, JAMES CROWLEY, TRUSTEE OF THE UNION MUTUAL MEDICAL
FUND,

                         Plaintiffs-Counter-Defendants-Appellees-Cross-Appellants,

JANET SACHS, TRUSTEE OF THE UNION MUTUAL MEDICAL FUND, HERBERT
POBINER, TRUSTEE OF THE UNION MUTUAL MEDICAL FUND,

                        Plaintiffs-Counter-Defendants-Appellants,

        v.                                                          Nos. 17-1184, 17-1480

1
  Judge Richard J. Sullivan, United States District Court for the Southern District of New York,
sitting by designation.
TEAMSTER LOCAL 210 AFFILIATED HEALTH AND INSURANCE FUND,

                 Defendant-Appellant-Cross-Appellee.2
_____________________________________________________

Appearing for Appellant:        Roland R. Acevedo (Thomas A. Thompson, Yarmouth, Maine, on
                                the brief), New York, N.Y.

Appearing for Appellee:         Robert J. Kipnees, Lowenstein Sandler LLP (Michael A. Kaplan,
                                on the brief), New York, N.Y.

Appeal from the United States District Court for the Southern District of New York (Ramos, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

         The trustees of Teamsters Local 210 Affiliated Health and Insurance Fund and
Teamsters Local 210 Affiliated Health and Insurance Fund (collectively, “210 Fund”) appeal
from the October 3, 2018 opinion and order of the United States District Court for the Southern
District of New York (Ramos, J.) granting summary judgment to the trustees of the Union
Mutual Medical Fund and the Union Mutual Medical Fund (collectively, “UMMF”). The district
court awarded UMMF $2,460,777.33, resolving a decade-long litigation regarding which of the
two employee benefit funds were entitled to certain contributions made by employers pursuant to
a number of collective bargaining agreements. The district court also awarded UMMF
$1,246,211.80 in prejudgment interest, plus post-judgment interest. The 210 Fund moved for
reconsideration of the calculation of prejudgment interest and the district court denied the motion
on April 10, 2017. The 210 Fund also appeals from that decision. The UMMF cross appeals
from the district court’s July 23, 2015 decision that its state law claims were preempted by the
Labor Management Relations Act (“LMRA”). We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.

         The 210 Fund argues that in allowing UMMF to amend its complaint to assert claims
under the LMRA, the district court violated this Court’s mandate in Silverman v. Miranda, 761
F.3d 277 (2d Cir. 2014). The 210 Fund argues the mandate limited the district court to consider
only whether to exercise supplemental jurisdiction over UMMF’s state law claims. Once the
district court concluded that those claims were preempted by the LMRA, the 210 Fund argues,
that should have ended the district court’s inquiry.

       “We determine de novo the meaning of a previous mandate of this Court.” Brown v. City
of New York, 862 F.3d 182, 184 (2d Cir. 2017). It is well-settled that a district court cannot stray
from the mandate issued by an appellate court, such that “[w]here a mandate limits the issues
open for consideration on remand, a district court cannot ordinarily consider additional issues.”
Puricelli v. Argentina, 797 F.3d 213, 218 (2d Cir. 2015). “We consider both the express terms
and broader spirit of the mandate to ensure that its terms have been scrupulously and fully
2
    The Clerk of the Court is directed to amend the caption as above.


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carried out.” Id. (internal quotation marks omitted). However, “the mandate is controlling only as
to matters within its compass.” Statek Dev. Corp. v. Dev. Specialists, Inc., 809 F.3d 94, 98 (2d
Cir. 2015) (internal quotation marks omitted). “When the mandate leaves issues open, the lower
court may dispose of the case on grounds not dealt with by the remanding appellate court.” Id.

         The district court did not impermissibly exceed the scope of this Court’s mandate on
remand. The mandate here directed the district court to conduct “further proceedings in
accordance with the opinion of this Court.” Silverman, 761 F.3d at 288. Nothing in our opinion
restricted the district court from considering LMRA preemption, so the district court did not
violate our mandate when it exercised its discretion to permit amendment of the complaint. See
Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co., 762 F.3d 165, 175–76 (2d Cir. 2014) (where
appellate court does not consider an issue, mandate rule does not preclude the district court from
deciding the case on alternate grounds).

        We also reject the 210 Fund’s argument that the district court lacked subject matter
jurisdiction under Section 201 of the LMRA because the 210 Fund was not a signatory to the
underlying collective bargaining agreements (“CBAs”). See, e.g., Loss v. Blankenship, 673 F.2d
942, 946 (7th Cir. 1982) (“[C]ourts construing the statute have held that [S]ection 301(a) does
not provide the basis for an LMRA claim against a nonparty to the underlying collective
bargaining agreement.”); see also id. at 346-47 (collecting cases). Here, however, the 210 Fund
was a party to the CBAs. The Allied Welfare Fund (“AWF”) became a party when it performed
that obligations prescribed to it in the CBAs and “manifested an intent to be bound” by the
CBAs, including the obligation to remit payments to the UMMF. See MBIA Ins. Corp. v. Royal
Bank of Canada, 706 F. Supp. 2d 380, 396-98 (S.D.N.Y. 2009); see also RUS, Inc. v. Bay Indus.,
Inc., No. 01-cv-6133, 2004 WL 1240578, at * 20 (S.D.N.Y. May 25, 2004); aff’d sub nom.
Recticel Foam Corp. v. Bay Indus. Inc., 128 F. App’x 798 (2d Cir. 2005) (summary order). The
210 Fund, which described itself as a successor-in-interest to the AWF, see Fishbein v. Miranda,
670 F. Supp. 2d 264, 273 n.3 (S.D.N.Y. 2009), became a party to the CBAs when it assumed the
obligations of the AWF. See Burden v. Robertson, 7 F.2d 266, 266 (2d Cir. 1925) (“No one
doubts that one may assume a contract which he did not originally make . . .”). Contrary to what
the 210 Fund argues, it was not simply an intermediary—it was a party. As such the UMMF, as a
third-party beneficiary of the CBAs, was entitled to enforce the CBAs against the 210 Fund
pursuant to Section 301.

        We also reject the 210 Fund’s argument that the district court lacked subject matter
jurisdiction under Section 301 of the LMRA because the 210 Fund was not a signatory to the
underlying collective bargaining agreements (“CBAs”). See, e.g., Loss v. Blankenship, 673 F.2d
942, 946 (7th Cir. 1982) (“[C]ourts construing the statute have held that [Section] 301(a) does
not provide the basis for an LMRA claim against a nonparty to the underlying collective
bargaining agreement.”); see also id. at 946-47 (collecting cases). Here, however, the 210 Fund
was a party to the CBAs. The Allied Welfare Fund (“AWF”) became a party when it performed
that obligations prescribed to it in the CBAs and “manifested an intent to be bound” by the
CBAs, including the obligation to remit payments to the UMMF. See MBIA Ins. Corp. v. Royal
Bank of Canada, 706 F. Supp. 2d 380, 396-98 (S.D.N.Y. 2009); see also RUS, Inc. v. Bay Indus.,
Inc., No. 01-cv-6133, 2004 WL 1240578, at *20 (S.D.N.Y. May 25, 2004); aff’d sub nom.
Recticel Foam Corp. v. Bay Indus., Inc., 128 F. App’x 798 (2d Cir. 2005) (summary order). The



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210 Fund, which described itself as a successor-in-interest to the AWF, see Fishbein v. Miranda,
670 F. Supp. 2d 264, 273 n.3 (S.D.N.Y. 2009), became a party to the CBAs when it assumed the
obligations of the AWF. See Burden v. Robertson, 7 F.2d 266, 268 (2d Cir. 1925) (“No one
doubts that one may assume a contract which he did not originally make . . . .”). Contrary to what
the 210 Fund argues, it was not simply an intermediary—it was a party. As such the UMMF, as a
third-party beneficiary of the CBAs, was entitled to enforce the CBAs against the 210 Fund
pursuant to Section 301.

        Further, there is no merit to the 210 Fund’s argument that the district court erred when it
refused to recalculate pre-judgment interest. The 210 Fund abandoned any objection it could
have made to the district court’s April 10, 2017 order because its opening brief fails to address
the principal dispositive ground on which the district court based its decision to deny the motion,
and because we see no manifest injustice in the result. See, e.g., Garcia v. Hartford Police Dep’t,
706 F.3d 120, 130-31 (2d Cir. 2013).

        We affirm the district court’s judgment for the reasons set forth in the several thorough
opinions below. As to UMMF’s cross-appeal, the district court correctly applied Supreme Court
precedent in dismissing UMMF’s state law claims as preempted by the LMRA.

       We have considered the remainder of the arguments made by the 210 Fund and UMMF
and find them to be without merit. Accordingly, the judgment of the district court hereby is
AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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