Sullivan v. Lemoncello

36 F.3d 676, 1994 WL 528449
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 28, 1994
DocketNo. 93-3087
StatusPublished
Cited by27 cases

This text of 36 F.3d 676 (Sullivan v. Lemoncello) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sullivan v. Lemoncello, 36 F.3d 676, 1994 WL 528449 (7th Cir. 1994).

Opinion

GORDON, District Judge.

Defendant-appellant, Anthony Lemoncello d/b/a Lemoncello Plumbing Company [“Lem-oncello”], appeals from the district court’s entry of a summary judgment in favor of the plaintiffs-appellees [“the plaintiffs”] in their action to enforce two separate arbitration awards. The awards were entered against Lemoncello for his violations of a collective bargaining agreement. Lemoncello’s primary contention is that the arbitration awards upheld by the district court do not draw their essence from the collective bargaining agreement. See United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). Lemoncello asks this court to reverse the judgment of the district court and remand this action for further proceedings. We decline this invitation and affirm.

I. STANDARD OF REVIEW

We review a district court’s decision to grant summary judgment de novo and apply the same standard as that employed by the district court. Nat’l Wrecking Co. v. IBT, Local 731, 990 F.2d 957, 960 (7th Cir.1993); Scherer v. Rockwell Int’l Corp., 975 F.2d 356, 359 (7th Cir.1992). In doing so, “we must review the record a; d all inferences drawn from it in the light most favorable to the nonmovant ... and determine whether a genuine issue exists as to any material fact.” Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir.1991) (citations omitted). We will affirm a district court’s grant of summary judgment where the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.” Rule 56(c), Federal Rules of Civil Procedure.

II. PROCEDURAL AND FACTUAL BACKGROUND

As a threshold matter, Lemoncello contends that the district court erred in granting summary judgment to the plaintiffs because genuine issues of material fact exist in the record. We find no merit to this argument.

Before the district court, Lemoncello did not challenge, or even make an attempt to dispute, any of the facts advanced by the plaintiffs in conjunction with their summary judgment motion. See District Court Docket Entry [“DCDE”] # 15 and # 18 at 1-2. Nor did Lemoncello argue to the district court, even in a conclusory fashion, as he does now, that summary judgment should be denied because of genuine issues of material fact in the record. DCDE # 18 at 1-2. Lemoncello has waived his argument as to the presence of genuine issues of material fact because he did not preserve it for appeal by raising it before the district court. See, e.g., Old Republic Ins. Co. v. Federal Crop Ins. Corp., 947 F.2d 269, 276 (7th Cir.1991) (“It is fundamental that on appeal to this court a litigant is restricted to those arguments which already have been raised at the district court level.”); Magicsilk Corp. of New Jersey v. Vinson, 924 F.2d 123, 125 (7th Cir.1991) (‘We will not consider arguments raised for the first time on appeal_”).

Even if we were to consider the merits of Lemoncello’s argument as to the existence of genuine issues of material fact, we would reject it; our de novo review of the district court record reveals that, in opposition to the plaintiffs’ motion for summary judgment, Lemoncello failed to “produce [any] eviden-tiary materials that demonstrate the existence of a ‘genuine issue’ for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 2556, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting).

[679]*679Rule 56(e), Federal Rules of Civil Procedure, provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Only questions of law are now before us; the facts material to the disposition of this appeal are not in dispute and are summarized below.

One of the plaintiffs, Gerald M. Sullivan, is a trustee of four multi-employer benefit funds. The four funds are the “Plumbers’ Pension Fund, Local 130, U.A.”; the “Plumbers’ Welfare Fund, Local 130, U.A.”; the “Trust Fund for Apprentice and Journeymen Education and Training, Local 130, U.A.”; and the “Chicago Journeymen Plumbers’ Local Union 130, U.A., Group Legal Services Plan Fund.” Each fund was established pursuant to the Labor Management Relations Act, 1947, 29 U.S.C. § 186(c). Another of the plaintiffs, The Plumbing Council of Chi-cagoland, is an Illinois not-for-profit corporation. The remaining plaintiffs are members of the Joint Arbitration Board [“JAB”] of the Plumbing Contractor’s Association and the Chicago Journeymen Plumbers’ Union, Local 130, U.A. [“Union”]. Lemoncello is a plumbing contractor operating in Cook County, Illinois. DCDE # 10 at 1-3, DCDE # 11 at 1-2.

Lemoncello was a party to a collective bar-gaining agreement with the Union, and the plaintiffs are all associated with the Union. The collective bargaining agreement appears to have been renewed every two years. The record demonstrates that Lemoncello was a party to the collective bargaining agreement between June 1, 1988, and May 31,1990, and between June 1,1990, and May 31, 1992. DCDE # 10, exhibit A. The record also implies that Lemoncello was a party to the collective bargaining agreement prior to June 1,1988. DCDE # 10, exhibit C at 1. The collective bargaining agreement required Lemoncello to make certain payments to the plaintiff funds under the terms of the agreement. DCDE # 10 at 3.

Article II, Section 1 of the collective bargaining agreement provides, in part, that:

Disagreements or disputes arising under or which involve interpretation of this Agreement shall be processed and settled by arbitration in the manner wet [sic] forth in this Article.

DCDE # 18, exhibit # 3. Article II, Section 2 of the collective bargaining agreement provides that:

The parties hereto agree that all arbitrable disputes arising between them shall be submitted to a Joint Arbitration Board.

Id. Finally, Article II, Section 6 of the collective bargaining agreement states that:

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36 F.3d 676, 1994 WL 528449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-lemoncello-ca7-1994.