United States District Court, E.D. Michigan, Southern Division
TRUSTEES OF THE OPERATING ENGINEERS' LOCAL 324 PENSION FUND, OPERATING ENGINEERS' LOCAL 324 HEALTH CARE PLAN, OPERATING ENGINEERS' LOCAL 324 VACATION & HOLIDAY FUND, OPERATING FUND, OPERATING ENGINEERS' LOCAL 324 APPRENTICESHIP FUND, and OPERATING ENGINEERS' LOCAL 324 DEFINED CONTRIBUTION PLAN, Trust Funds Established and Administered Pursuant to Federal Law, Plaintiffs,
PACITTO & FOREST CONSTRUCTION COMPANY, a dissolved Michigan corporation, JAT MANAGEMENT & CONSULTING, INC., a dissolved Michigan corporation, DAVID FOREST, STEVE PACITTO, UMBERTO PACITTO, JOSEPH PACITTO and THOMAS FOREST, individually AND D/B/A PACITTO & FOREST CONSTRUCTION COMPANY, and JAT MANAGEMENT & CONSULTING, INC., Defendants.
ORDER DENYING MOTION TO ENFORCE SETTLEMENT AGREEMENT
OR FOR SUMMARY JUDGMENT ON COUNT IV AND EXECUTION OF CONSENT
JUDGMENT [DKT. NO. 14]
PAGE HOOD CHIEF JUDGE
(also referred to as the “Funds”) filed a
four-count Complaint against Defendants for alleged failure
to make employee fringe benefit contributions, in violation
of a collective bargaining agreement. On August 31, 2017,
Plaintiffs filed the instant Motion to Enforce Settlement
Agreement or for Summary Judgment on Count IV and Execution
of Consent Judgment. [Dkt. No. 14] The Motion is fully
briefed. The Court, having concluded that the decision
process would not be significantly aided by oral argument,
orders that the motion be resolved on the motion and briefs
submitted by the parties. E.D. Mich. L.R. 7.1(f)(2). For the
reasons that follow, the Court denies the Motion.
the terms and provisions of a Collective Bargaining Agreement
between the Defendants (doing business as “Pacitto and
Forest Construction” and “JAT Consulting and
Management”) and the Plaintiffs (the
“CBA”), Defendants agreed to make employee fringe
benefit contributions to the Funds on behalf of each employee
employed by the Defendants and covered by the CBA. Plaintiffs
allege that Defendants, in violation of the CBA, failed to
remit the required fringe benefit contributions to the Funds.
As a result of that failure, an audit was conducted on May
20, 2016, that revealed the Defendants owed the Funds $69,
722.63 for the period of January 2013 through December 2015.
parties engaged in negotiations over the course of months in
order to come to an agreement for Defendants to pay
delinquent fringe benefits owed to the Funds. On October 5,
2016, as a result of these on-going negotiations, the parties
allegedly reached an agreement on the essential terms of the
payment agreement. On October 20, 2016, Plaintiffs'
counsel tendered to Defendants' counsel proposed
settlement documents that memorialized the allegedly agreed
upon essential terms. The proposed settlement documents
consisted of a Payment Agreement, pursuant to which the
Defendants would pay $74, 575.63 according to a schedule of
payments, and if such payments and/or other conditions were
not met, a Consent Judgment could be entered upon the filing
of a complaint.
November 10, 2016, Defendants' counsel indicated to
Plaintiffs' counsel that his clients had indicated they
would sign the documents but most of the Defendants never
signed the documents. Only Defendant Steve Pacitto, on behalf
of himself and Pacitto and Forest Construction Company,
signed the Payment Agreement. Only Steven Pacitto (on behalf
of himself, Pacitto and Forest Construction Company, and JAT
Management and Consulting Inc.) signed the Consent Judgment.
David Forest, Thomas Forest, Umberto Pacitto, and Joseph
Pacitto never signed either document, and no one signed the
Payment Agreement on behalf of JAT Management &
latter half of 2016 and early in 2017, counsel for the
Defendants was informed that the Plaintiffs would file a
complaint for entry of the Consent Judgment for Breach of the
Payment Agreement and for Defendants' failure to sign
same. Plaintiffs' counsel was informed that only Steve
Pacitto would sign at this time and to move forward with the
filing. None of the payments have been made pursuant to the
Payment Agreement, and Defendants have not paid ongoing
contributions for several months,  both of which are
requirements under the terms of the Payment Agreement. A
breach of the Payment Agreement based on the failure to
comply with either of those requirements can trigger the
entry of the Consent Judgment.
filed the instant Motion seeking to enforce what they believe
was an agreed upon settlement agreement covering the amounts
owed for the period of January 2013 through December 2015. In
the alternative, Plaintiffs seek partial summary judgment on
Count Four of the Complaint and ask the Court to order an
audit from January 2016 - present. Plaintiffs also request
that they be allowed to begin execution of the Consent
Judgment against all Defendants, while the audit for the
subsequent period (January 2016 - present) is conducted.
APPLICABLE LAW & ANALYSIS
56(a) of the Rules of Civil Procedures provides that the
court “shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The presence of factual disputes will
preclude granting of summary judgment only if the disputes
are genuine and concern material facts. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
about a material fact is “genuine” only if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
Although the Court must view the motion in the light most
favorable to the nonmoving party, where “the moving
party has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). Summary judgment must be entered against
a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial. In such a situation, there can be “no genuine
issue as to any material fact, ” since a complete
failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other
facts immaterial. Celotex Corp., 477 U.S. at 322-23.
A court must look to the substantive law to identify which
facts are material. Anderson, 477 U.S. at 248.
Enforcement of the ...