Capozza Tile Company, Inc. v. Joy, Docket No. 01-108-P-C, (Consolidated) (D. Me. 4/29/2002)

• Decision Date: 29 April 2002
• Docket Number: Docket No. 01-108-P-C, (Consolidated).
• Parties: CAPOZZA TILE COMPANY, INC., Plaintiff, v. RICHARD N. JOY, et al., Defendants, and JOHN FLYNN, et al., Plaintiffs, v. CAPOZZA TILE COMPANY, INC., Defendant.
• Court: U.S. District Court — District of Maine

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CAPOZZA TILE COMPANY, INC., Plaintiff, v. RICHARD N. JOY, et al., Defendants, and JOHN FLYNN, et al., Plaintiffs, v. CAPOZZA TILE COMPANY, INC., Defendant.

Docket No. 01-108-P-C, (Consolidated).

United States District Court, D. Maine.

April 29, 2002.

RECOMMENDED DECISION ON MOTIONS FOR SUMMARY JUDGMENT AND MEMORANDUM DECISION ON AVAILABILITY OF JURY TRIAL

DAVID M. COHEN, Magistrate Judge.

John Flynn and the trustees of the Bricklayers and Trowel Trades International Pension Fund ("the Fund") move for summary judgment on their complaint ("the Flynn motion") against Capozza Tile Company, Inc. ("Capozza") in one of the two actions that have been consolidated for purposes of this proceeding.¹ I recommend that the court deny that motion. Richard N. Joy and the International Union of Bricklayers & Allied Craftworkers Local No. 1 — Northern New England ("Local 1") move for summary judgment in the other action ("the Joy motion"). I recommend that the court grant the motion as to Joy and deny it as to Local 1.

Capozza moves to strike certain paragraphs of the statement of material facts submitted in support of the Flynn motion and all of the statement of material facts submitted in support of the Joy motion. Capozza also moves to strike all factual allegations and new material filed in response to its motion to strike portions of the Flynn statement of material facts, and the Flynn plaintiffs in turn move to strike this motion to strike. Because my recommended decision does not rely on many of the factual allegations challenged by the motions to strike, it is unnecessary to address those motions separately. Where I do rely on any factual assertion so challenged, I will note my reasons for doing so in the body of this recommended decision.

Finally, in accordance with my Amended Report of Final Pretrial Conference and Order ("Final Pretrial Order") (Docket No. 40), the parties have submitted memoranda of law on the question whether Capozza is entitled to a jury trial on the claims asserted against it in the Flynn action. I conclude that jury trial is available on those claims.

I. Summary Judgment Standard

Summary judgment is appropriate only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "In this regard, `material' means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. . . . By like token, `genuine' means that `the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party. . . .'" McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995) (citations omitted). The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Cadle Co. v. Hayes, 116 F.3d 957, 959 (1st Cir. 1997). Once the moving party has made a preliminary showing that no genuine issue of material fact exists, "the nonmovant must contradict the showing by pointing to specific facts demonstrating that there is, indeed, a trialworthy issue." National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995) (citing Celotex, 477 U.S. at 324); Fed.R.Civ.P. 56(e). "This is especially true in respect to claims or issues on which the nonmovant bears the burden of proof." International Ass'n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 200 (1st Cir. 1996) (citations omitted).

II. Factual Background

The parties' statements of material facts include the following undisputed relevant facts, appropriately supported in accordance with this court's Local Rule 56.

Capozza is a tile and flooring subcontractor and retailer. Plaintiff's Response to Defendants' Statement of Material Facts ("Capozza Responsive Joy SMF") (Docket No. 29) ¶ 1; Affidavit of Joseph A. Capozza, Jr. ("Capozza Aff.") (Docket No. 26) ¶ 1. The Bricklayers and Trowel Trades International Pension Fund is a multiemployer employee benefit plan that provides pension and other benefits to employees who work in the construction industry under contracts negotiated between local unions and employers. Plaintiffs' Rule 56(B) Statement of Materials [sic] Facts as to Which There is No Genuine Issue ("Flynn SMF") (Docket No. 19) ¶ 1; Defendant's Response to Plaintiffs' Statement of Material Facts, etc. ("Capozza Responsive Flynn SMF") (Docket No. 30) ¶ 1. Employers who are parties to such contracts must make contributions to the Fund. Id. In 1993, Joseph A. Capozza, Jr., then president of Capozza, and three other Capozza employees were members of the International Union of Bricklayers and Allied Craftworkers, Local No. 1. International Union of Bricklayers & Allied Craftworkers Local No. 1 — Northern New England and Richard N. Joy's Statement of Material Facts Not in Dispute ("Joy SMF") (Docket No. 22) ¶ 1;² Capozza Responsive Joy SMF ¶ 1. David Stupar is the executive director of the Fund. Flynn SMF ¶ 2; Capozza Responsive Flynn SMF ¶ 2. As executive director, Stupar supervises the collection of employer delinquencies. Id. Richard N. Joy is the current president and secretary/treasurer of Local 1. Joy SMF ¶ 3; Capozza Responsive Joy SMF ¶ 3.

The collection procedures adopted, enacted and memorialized by the trustees of the Fund authorize assessment of interest at 15% per annum on delinquent contributions, as well as an additional amount in the form of liquidated damages which is the greater of 15% per annum or 20% of the delinquency. Flynn SMF ¶¶ 3-4; Capozza Responsive Flynn SMF ¶¶ 3-4. Joseph A. Capozza, Jr. had one or more discussions with Joy in 1993. Joy SMF ¶ 4; Capozza Responsive Joy SMF ¶ 4; Capozza Aff. ¶ 3. After the meeting or meetings, Joseph A. Capozza, Jr. executed the signature page of an agreement presented to him by Joy. Joy SMF ¶ 4; Capozza Responsive Joy SMF ¶ 4; Capozza Aff. ¶¶ 4, 7-8. He did so to preserve the pension benefits of the four union members (himself included). Joy SMF ¶ 6; Capozza Responsive Joy SMF ¶ 6; Capozza Aff. ¶ 8. The parties dispute whether Joseph A. Capozza, Jr. ever requested a copy of the full agreement. Joy SMF ¶ 7; Capozza SMF ¶ 33. Since 1993 Capozza has made regular contributions to the Fund for the four employees who were union members at the time Joseph A. Capozza, Jr. signed the document. Joy SMF ¶ 8; Capozza Responsive SMF ¶ 8. Capozza made these payments based on periodic statements from the Fund that indicated how much to pay. Defendant's Statement of Material Facts ("Capozza SMF I"), included in Capozza Responsive Flynn SMF) ¶ 62; Plaintiff's Rule 56(D) Reply Statement of Material Facts, etc. ("Flynn Responsive SMF") (Docket No. 38) ¶ 62. The Fund, Local 1 and Joy contend that the document Joseph A. Capozza, Jr. signed was a collective bargaining agreement requiring Capozza to make contributions to various union funds, including the Fund, for all of its employees whether members of Local 1 or not and that the agreement contained a so-called "evergreen clause" by which the term of the agreement was automatically renewed in the absence of timely written notice of termination by one of the parties to the other. Flynn SMF ¶¶ 8-9, 11; Joy SMF ¶ 4.

On October 15, 1992 the executive board of the International Union of Bricklayers & Allied Craftsmen ("the Union") established an administrative district council of Maine, New Hampshire and Vermont. Capozza SMF I ¶ 17; Flynn Responsive SMF ¶ 17. Local unions in northern New England affiliated with the Union, including Local 2, of which Joseph A. Capozza, Jr. was then a member, ran the district council. Id. ¶¶ 3, 18. Joy assumed the position of business manager of the district council. Id. ¶ 19. The collective bargaining agreement which the Fund and Local 1 contend that Joseph A. Capozza, Jr. signed in 1993, a copy of which is Exhibit 2 to the Declaration of David Stupar³ ("Stupar Dec.") (Exh. A to Flynn SMF), was prepared by Joy and Alfred DiRienzo, the Union's regional director for the New England region. Id. ¶ 20. The purpose of this "district council agreement" was to have one collective bargaining agreement under which each of the affiliated locals would work. Id. ¶¶ 21, 24.

Joy went to Portland in 1993 to try to "sign on" Capozza, even though the Union had received no indication from any employees of Capozza that they wanted the union or district council to bargain on their behalf. Id. ¶ 25. Prior to meeting with Joseph A. Capozza, Jr., Joy had already signed the district council agreement, contrary to proper practice. Id. ¶ 27. At the time, the majority of Capozza's employees were non-union. Id. ¶ 28. Joseph A. Capozza, Jr. retired in late 1993 or early 1994. Id. ¶ 41. His son, Joseph F. Capozza, has been president of Capozza since 1999. Joy SMF ¶ 7; Capozza Responsive Joy SMF ¶ 7.

The district council was dissolved on or about July 22, 1993, some time after the signature page was executed. Capozza SMF ¶ 46; Flynn Responsive SMF ¶ 46. On or about August 1, 1993 the Union merged the locals, including Local 2, into a "mega local" named Local Union 1, Northern New England. Id. ¶ 48. Joy was appointed president of the new Local 1. Id. ¶ 49. On or about December 29, 1994 the Union wrote to Joy advising that certain collective bargaining agreements, including those covering Portland, Maine, were about to expire. Id. ¶ 53; Deposition of Alfred A. DiRienzo, Exh. B to Flynn Responsive SMF, at 52-53 & Exh. 1 thereto. Contractors other than Capozza that had signed agreements with either the district council or Local 1 in 1993 signed new contracts in the period...