Andrea Doreen v. Building Material Local Union

Decision Date03 March 2003
Docket NumberNo. CIV.A.98-4838.,CIV.A.98-4838.
Citation250 F.Supp.2d 107
PartiesANDREA DOREEN, LTD., Dorothy Loguidice, J.C.S. Enterprises, Inc., Jack C. Stuart, J.C.S. Construction Co., Inc., Conroc Recycling Corp., Michael Loguidice Ultimate Demolition, Inc., Paul Scaglione, Plaintiffs, v. BUILDING MATERIAL LOCAL UNION 282, affiliated with the International Brotherhood of Teamsters, Tom Gesualdi, Paul Gattus, Dennis Gartland, Sr., Cary La Barbera, Lawrence Kudla and Others as Trustees and Fiduciaries of Local 282 Welfare, Pension, Annuity, Job Training, Vacation and Sick Leave Trust Funds Defendants.
CourtU.S. District Court — Eastern District of New York

Steven M. Coren, Coren & Braun, P.C, New York City, Robert G. Lipp, Franklin & Gringer, P.C, Garden City, NY, Anthony V. Barbiero, Anthony V. Barbiero, P.C, East Islip, NY, L. Susan Scelzo Slavin,, Slavin, Angiulo & Horowitz, LLP, Jericho, NY, for Plaintiff

Russell S. Hollander, Cohen, Weiss & Simon, Bruce S. Levine, Michael Bauman, Mary M. Dickman, Friedman Wolf & Grisi, Bruce S. Levine, Cohen, Weiss & Simon, New York City, for


YOUNG, District Judge.1


In 1994, Building Material Local Union 282 ("Local 282") entered a consent decree with the United States Government, acknowledging that it, and certain of its members, had acted as a criminal enterprise, in conjunction with organized crime. The consent decree enjoined Local 282 from engaging in further criminal and racketeering misconduct. Local 282 Mem. in Supp. of Mot. for Summ. J. [Docket No. 326] at 4.

In the years 1994 through 1996, the Trustees of the Local 282 Funds (the "Trustees") initiated four separate actions under section 502 of ERISA to collect fringe benefit contributions allegedly owed to the Funds under a Collective Bargaining Agreement that had been signed by JCS Enterprises. Local 282 Mem. in Supp. of Mot. for Summ. J. [Docket No. 326] at 10. The four collection actions were consolidated under a case apart from the instant action, No. CIV.A.94-604, (the "ERISA Collection Action").2 In the first half of 1998, the Trustees and Doreen completed discovery in the ERISA Collection Action, and the Trustees moved for summary judgment.

Doreen then brought the related RICO action before the Court, No. CIV.A.98-4838, against Local 282 and the Trustees under 18 U.S.C § 1962(c). In this action, Doreen alleges that the ERISA Collection Action was brought against it as part of a criminal extortion conspiracy and "a sham to retaliate against Doreen." Doreen's Opp'n to Summ. J. [Docket No. 337] at 3, 15, 22;3 Local 282's Mem. in Support of Summ. J. [Docket No. 326] at 11. In essence, Doreen claims that Local 282 and the Trustees had—during the time that the Consent Decree has been in place— engaged in a criminal conspiracy to put Doreen out of business for refusing to make unlawful payments. Doreen's Opp'n to Summ. J. [Docket No. 337]; See Doreen v. Local Union 282, No. 98-4838, 4-5 (E.D.N.Y. July 31, 2000) (order dismissing certain claims) [Docket No. 170]; Local 282's Mem. in Supp. of Summ. J. [Docket No. 326] at 2.

On September 11, 2000, Local 282 filed a cross-claim against Doreen in the RICO action to collect allegedly past due wages that were not paid to drivers in accordance with the Collective Bargaining Agreement. Local 282's Mem. in Supp. of Mot. for Summ. J. [Docket No. 326] at 14.

On June 15, 2001, Local 282 moved for partial summary judgment and an order to compel arbitration on the issue of whether Doreen failed to pay proper wages. Id. Doreen, on the same day, moved to dismiss Local 282's counterclaims based on equitable arguments such as laches, waiver, failure to meet a condition precedent, and lack of obligation under the Collective Bargaining Agreement to arbitrate. Doreen's Reply Mem. [Docket No. 241] at 4.

During the June 22, 2001 hearing—despite Doreen's arguments and defenses against arbitration—Judge Platt granted Local 282 partial summary judgment and directed Local 282 and Doreen to proceed to arbitration on all issues for this case, except the remaining RICO claim. June 22, 2001 Hearing Tr. [Docket 256] at 9-10, 14. The arbitration order did not—and was not intended to—include the claims for contribution sought by the Trustees via the ERISA Collection Action, Docket No. CV 94-4604. Oct. 18, 2001 Letter from Judge Platt [Docket No. 272].

On August 28, 2001, the parties attended a pre-hearing arbitration conference before Arbitrator Richard Adelman. Second Declaration of Michael Bauman [Docket No. 323], Exhibit J. They agreed to bifurcate liability from remedy. Declaration of Bruce Levine [Docket No. 327], Tab 1, Arbitration Opinion and Award at 2, 15. The parties then had hearings before Arbitrator Adelman on October 22, October 23, October 29, and December 18 of 2001, and February 25 and March 5 of 2002. Id. at 1.

On June 28, 2002 Arbitrator Adelman issued an Opinion and Award finding Doreen liable. Specifically, he found that Doreen failed to pay wages due its drivers as required by the Collective Bargaining Agreement. Id.

On July 1, 2002, the Trustees and Local 282 separately moved for summary judgment in the instant case, No. CIV.A.98-4838. On July 25, 2002, Doreen opposed this motion. On September 30, 2002, this Court held a summary judgment motion hearing via video conference4 and took the matter under advisement.

After consideration, the Court has decided to treat Local 282's motion for summary judgment as implicitly seeking to confirm the arbitration award. Usually, arbitration awards are confirmed by a court when a party seeks confirmation pursuant to 9 U.S.C. § 9 (2000). There is some authority, however, for treating other motions made after an award has been issued as implicitly seeking that confirmation. Maidman v. O'Brien, 473 F.Supp. 25, 27 (S.D.N.Y.1979) (noting that "there is authority for treating ... motions to dismiss as implicitly seeking ... confirmation" of the arbitration award, despite the fact that the defendants had not sought such confirmation explicitly pursuant to 9 U.S.C. § 9). Although the court in Maidman inferred a request for confirmation from a motion to dismiss, the court's reasoning also applies to the summary judgment motion in this case. Local 282's motion for summary judgment (filed approximately two weeks after the award was issued) relies on the validity of the arbitration award to undermine Doreen's RICO claim.5 See Local 282's Mem. in Supp. of Mot. for Summ. J. [Docket No. 326] at 3. Moreover, during the hearing, the subject of confirmation of the award was addressed. This Court asked Doreen's attorneys why it ought not confirm the award. Doreen's attorneys replied that its defenses had not yet been decided. Sept. 20, 2002 Video Conference Tr. [Docket No. 343] at 7-9. Given this discussion and the reliance Local 282 places on the outcome of the arbitration proceedings, the summary judgment motion can be viewed as an implicit request for confirmation of that award. In light of the lengthy history of this case and in the interest of moving this case along, the Court views it as such a request.


Generally, an arbitration award is final when no further litigation is necessary on the issue and the arbitrator intended that the award be final. See, e.g., Rocket Jewelry Box, Inc. v. Noble Gift Packaging, Inc., 157 F.3d 174, 177 (2d Cir.1998) ("[A]n arbitration order is final if it resolvefs] all issues submitted to arbitration, and determine^] each issue fully so that no further litigation is necessary to finalize the obligations of the parties.") (internal citations and quotation marks omitted); Michaels v. Mariforum Shipping, 624 F.2d 411, 413 (2d Cir.1980) (holding that "[i]n order to be `final,' an arbitration award must be intended by the arbitrators to be their complete determination of all claims submitted to them") see also Blue Tee Corp. v. Koehring Co., 754 F.Supp. 26, 30 (S.D.N.Y.1990).

Normally, for an arbitration award to be deemed final, the arbitrator must have determined damages in addition to liability. Michaels, 624 F.2d at 413-414 (stating that "[generally, in order for a claim to be completely determined, the arbitrators must have decided not only the issue of liability of a party on the claim, but also the issue of damages"); Metallgesellschaft A.G. v. M/V Capitan Constante, 790 F.2d 280, 282-283 (2d Cir.1986) (highlighting that a key reason for determining that the award was not final in Michaels was that "it left open the question of damages on the four counterclaims").

Here, however, the parties agreed during an arbitration hearing to bifurcate liability from remedy. Declaration of Bruce Levine [Docket No. 327], Tab 1, Arbitration Opinion and Award at 2, 15. Therefore, the Arbitrator's decision as to liability can be deemed "final" and confirmed by this Court. McGregor Van De Moere, Inc. v. Paychex, Inc., 927 F.Supp. 616, 618 (W.D.N.Y.1996) (deciding that the decision on liability was final and could be confirmed because the parties had bifurcated liability from damages); Corporate Printing Co. Inc. v. New York Typographical Union No. 6, No. CIV.A.93-6796, 1994 WL 376093, at *5 (S.D.N.Y. July 18, 1994) (same). Further, the Second Circuit has determined that "the submission by the parties determines the scope of the arbitrators' authority. Thus, if the parties agree that the [arbitral] panel is to make a final decision as to part of the dispute, the arbitrators have the authority and responsibility to do so." Trade & Transport, Inc. v. Natural Petroleum Charterers, Inc., 931 F.2d 191, 195 (2d Cir. 1991) (internal citations omitted). Moreover, once a final partial decision is made as to a particular issue, "the arbitrators have no further authority, absent agreement by the parties, to redetermine that issue." Id. (finding that the losing party could not reopen the issue of liability after it had been decided, but before damages were...

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