Construction Laborers Pension Trust v. Cen-Vi-Ro Concrete Pipe & Products Co., Inc.

• Citation: 776 F.2d 1416
• Decision Date: 21 November 1985
• Docket Number: CEN-VI-RO,No. 84-5891,84-5891
• Parties: CONSTRUCTION LABORERS PENSION TRUST, Plaintiff-Appellee, v.CONCRETE PIPE & PRODUCTS COMPANY, INC., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1416

776 F.2d 1416

CONSTRUCTION LABORERS PENSION TRUST, Plaintiff-Appellee, v. CEN-VI-RO CONCRETE PIPE & PRODUCTS COMPANY, INC., Defendant-Appellant.

No. 84-5891.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 7, 1985.

Decided Nov. 21, 1985.

James P. Watson, Everitt G. Beers, Los Angeles, Cal., for plaintiff-appellee.

Dennis R. Murphy, Diepenbrock, Wulff, Plant & Hannegan, Sacramento, Cal., for defendant-appellant.

Appeal From United States District Court for the Central District of California.

Before FLETCHER, PREGERSON, and HALL, Circuit Judges.

PREGERSON, Circuit Judge:

Appellant Concrete Pipe & Products Co. of California (CP & P) challenges a district court order that it submit to arbitration under the Multiemployer Pension Plan Amendments Act of 1980, 29 U.S.C. Secs. 1001a, 1322a-1461 (1982 & Supp. I 1983) (MPPAA), to determine its date of withdrawal from appellee Construction Laborers Pension Trust (Trust). The district court, in a partial grant of summary judgment for the Trust, ordered the parties to arbitration, denied summary judgment on several remaining constitutional issues without prejudice to their renewal after arbitration, and retained jurisdiction over the action to review the arbitrator's decision. Because the order to arbitration is not a final order and because it did not effectively deny CP & P injunctive relief so as to create a risk of irreparable injury that can only be effectually challenged by immediate appeal, we dismiss the appeal for lack of jurisdiction.

FACTS

The MPPAA regulates employer withdrawals from multiemployer benefit plans. Under the statute, an employer who withdraws from a plan on or after April 29, 1980, must pay a share of the plan's unfunded vested liability, calculated by the plan's sponsor. ¹ If an employer disputes the fact or amount of its withdrawal liability, section 1401 provides that the parties shall proceed to arbitration. ² The arbitrator's decision is reviewable by a district court, ³ subject to a presumption that the arbitrator's findings of fact are correct. ⁴

In November 1976, CP & P purchased a plant for the manufacture of concrete pipe in Shafter, California, from Cen-Vi-Ro Concrete Pipe & Products Company. CP & P honored the terms of the collective bargaining agreement between the former owner and the Southern California District Council of Laborers (Union). The agreement required the owner of the plant to contribute to the Trust. Two years later, in November of 1978, CP & P signed a new agreement with the Union which also required contributions to the Trust, and which provided for automatic renewal unless the parties gave notice before June 30, 1981, or before June 30 of each year thereafter.

On August 17, 1979, CP & P ceased production of concrete pipe at the Shafter plant. CP & P laid off employees, stopped purchasing materials, and removed machinery for shipment to its Sacramento plant. From October 1979 to November 1981, two full-time employees worked at the Shafter plant as caretakers. CP & P did not contribute to the Trust for these employees. Its last contributions to the Trust were in May 1981, when it employed one laborer for forty hours.

In the spring of 1981, the Union and CP & P both gave notice of their desire to renegotiate their collective bargaining agreement. Negotiations followed in October and November. In November, CP & P reopened the Shafter plant, hiring employees in the categories covered by the collective bargaining agreement but failing to make any contribution to the Trust for those employees. On November 30, 1981, CP & P gave notice of an impasse in negotiations and withdrew recognition of the Union. The effective termination date of the collective bargaining agreement was December 15, 1981.

On January 20, 1982, the Trust sent CP & P notice that CP & P's liability under the MPPAA for its share of the pension plan's unfunded vested benefits totaled $268,168.81. The Trust calculated that sum by setting CP & P's withdrawal date as December 15, 1981, the date that CP & P ended its collective bargaining agreement and thus "permanently cease[d] to have an obligation to contribute under the plan...." 29 U.S.C. Sec. 1383(a)(1) (1982). CP & P refused to pay the assessed liability, contending that it withdrew from the Trust when it ceased production of pipe at the Shafter Plant on August 17, 1979, and that even though the plant eventually reopened, the closure was "permanent" because CP & P intended it to last indefinitely. Arguing that more than seven months before the MPPAA's effective date of April 29, 1980, it "permanently cease[d] all covered operations under the plan," 29 U.S.C. Sec. 1383(a)(2) (1982), CP & P maintains that it owes no withdrawal liability at all.

On October 5, 1982, the Trust filed a complaint in the District Court for the Central District of California against CP & P seeking $268,168.81 in liability under the MPPAA for CP & P's withdrawal from the Trust. One day later, on October 6, 1982, CP & P filed an action in the District Court for the Eastern District of California, asking for declaratory and injunctive relief against the Trust, asserting that CP & P had withdrawn from the Trust prior to the effective date of the MPPAA, and challenging the constitutionality of the MPPAA. CP & P's Eastern District action was transferred to the Central District and was consolidated with the Trust's action.

After discovery, the parties filed an extensive stipulation of facts, and filed cross-motions for summary judgment on the issues of CP & P's date of withdrawal and the constitutionality of the MPPAA. On April 4, 1984, the district court issued an order upholding the constitutionality of the mandatory arbitration provision of the MPPAA and ordering the parties to submit to arbitration to resolve the issue whether CP & P withdrew from the Trust before or after the effective date of the MPPAA. The court denied the parties' summary judgment motions on the remaining constitutional issues without prejudice to their renewal after arbitration, and expressly retained jurisdiction of the consolidated action to review the arbitrator's decision.

CP & P appeals the district court's order that the parties submit to arbitration, contending that if, as it alleges, it withdrew from the Trust before the MPPAA became effective, it is not subject to any of the terms of the MPPAA, including the provision in 29 U.S.C. Sec. 1401(a)(1) (1982) that disputes arising under the MPPAA shall be resolved through arbitration. In general, CP & P contends that the threshold issue of withdrawal is not arbitrable.

Because we conclude that we are without jurisdiction over the appeal, we do not reach the substantive issue whether the district court erred in ordering CP & P to submit to arbitration under the MPPAA without first deciding whether CP & P is subject to the terms of the statute.

JURISDICTION UNDER 28 U.S.C. Sec. 1292(a)(1)

I. The Enelow-Ettelson Doctrine

CP & P first contends that the district court's order staying the judicial proceedings pending arbitration is appealable under 28 U.S.C. Sec. 1292(a)(1) (1982). ⁵ Under section 1292(a)(1) we have jurisdiction over appeals from "[i]nterlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions...." The Supreme Court has held that a court's order granting a stay of its own proceedings pending the outcome of proceedings in another forum is analogous to an injunction and is appealable under section 1292(a)(1). Enelow v. New York Life Insurance Co., 293 U.S. 379, 381-83, 55 S.Ct. 310, 310-12, 79 L.Ed. 440 (1935); Ettelson v. Metropolitan Life Insurance Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942); see also Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955).

The Enelow-Ettelson doctrine construes a stay as an injunction if: (1) the original cause of action could have been maintained only at law before the merger of law and equity, and (2) the stay is sought to permit the interposition of an equitable defense or counterclaim. Salinas Cooling Co. v. Fresh Fruit and Vegetable Workers, Local P-78-A, 743 F.2d 705, 706-07 (9th Cir.1984); Lake Communications, Inc. v. ICC Corp., 738 F.2d 1473, 1476 (9th Cir.1984); Mediterranean Enterprises, Inc. v. Ssangyong Corp., 708 F.2d 1458, 1462 (9th Cir.1983); Brannon v. Warn Brothers, Inc., 508 F.2d 115, 118 (9th Cir.1974); Danford v. Schwabacher, 488 F.2d 454, 455 (9th Cir.1973). We examine each of these requirements in turn.

The Trust's complaint meets the first prong of the test because it asks primarily for money damages for CP & P's withdrawal. The equitable relief it requests is only that which "to the court shall seem necessary for the enforcement of defendant's payment obligation." Under either of the tests used to determine whether a suit is equitable or legal, the "historical" test or the "dominant purpose" test, this case may be characterized as "legal." See Mediterranean Enterprises, 708 F.2d at 1462 (dominant purpose test); Salinas Cooling, 743 F.2d at 706-07 (historical test); see also Langley v. Colonial Leasing Co., 707 F.2d 1, 6 (1st Cir.1983) (discussing both); USM Corp. v. GKN Fasteners, Ltd., 574 F.2d 17, 21 (1st Cir.1978) (same). The Trust's action for withdrawal liability is analogous to a contract action for liquidated damages, which historically could be maintained only at law. ⁶ Alascom, 727 F.2d at 1421 (claim for money damages is action at law); Wren, 654 F.2d at 533 (breach of contract actions are actions at law); Bear v. Hayden, Stone, Inc., 526 F.2d 734, 735 (9th Cir.1975) (per curiam) (contract action is action at law). And because the equitable relief the Trust requests is purely incidental to the legal claim for money damages, the predominant purpose of the action is not equitable but legal. See Brannon, 508...