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Trustees of Operating Engineers Local 324 Pension Fund v. Pacitto & Forest Construction Co.

United States District Court, E.D. Michigan, Southern Division

November 14, 2017

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,
v.
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]

          DENISE PAGE HOOD CHIEF JUDGE

         I. INTRODUCTION

         Plaintiffs (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.

         II. BACKGROUND

         Under 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.

         The 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.

         On 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 & Consulting, Inc.

         In the 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, [1] 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.

         Plaintiffs 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.

         III. APPLICABLE LAW & ANALYSIS

         A. Rule 56

         Rule 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.

         B. Analysis

         1. Enforcement of the ...


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