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Pkf Mark Iii Inc., Peter E. Getchell, Stephen P.Neidhart, Craig L. Kolbman v. Foundation For Faircontracting

December 21, 2010

PKF MARK III INC., PETER E. GETCHELL, STEPHEN P.NEIDHART, CRAIG L. KOLBMAN,
GLENN A. ELY, MITCHELL BALAND, PLAINTIFFS,
v.
FOUNDATION FOR FAIRCONTRACTING, THOMAS ST. JOHN, NEW JERSEY : & REGIONAL COUNCIL OF CARPENTERS,
ROBERT "SKIP" BOYCE, ROBERT TARBY, LOCAL 623 UNITED BROTHERHOOD OF CARPENTERS AND JOINER OF AMERICA, ALBERT G. KROLL, FRANK SPENCER, KEVIN P. MCCABE, DEFENDANTS.



The opinion of the court was delivered by: Hon Joseph H. Rodriguez

MEMORANDUM OPINION ORDER

This matter has come before the Court on motions for summary judgment filed by Defendant Albert G. Kroll, Esq. (Docket No. 125) and by Defendants New Jersey Regional Council of Carpenters, Local 623 United Brotherhood of Carpenters and Joiner of America, Robert "Skip" Boyce, Robert Tarby, Frank Spencer, and Kevin P. McCabe (Docket No. 126).*fn1 Oral argument was heard on the motions on December 2, 2010, and the record of that proceeding is incorporated here. For the reasons expressed on the record of that date, as well as those set forth below, the motions will be granted in favor of the Defendants.

I. BACKGROUND

Plaintiff PKF Mark III ("PKF") is a general contractor engaged in the business of construction of public works projects. The individual Plaintiffs are Pennsylvania citizens, and officers and/or directors of PKF. Defendant Foundation for Fair Contracting ("FFC") is allegedly a New Jersey organization; its executive director is Defendant Thomas St. John. Defendant New Jersey Regional Council of Carpenters ("NJRCC") is a labor organization which operates through its representatives, Defendants Robert "Skip" Boyce, Frank Spencer, and Kevin P. McCabe. Defendant Local 623, United Brotherhood of Carpenters and Joiners of America, is also a New Jersey labor organization, with Defendant Robert Tarby as representative/agent. Collectively, these are the "Carpenter Defendants." Defendant Albert G. Kroll is a New Jersey attorney, and representative/agent of unions affiliated with the Building and Construction Trades ("BCT"), including Local 623 and NJRCC.

In essence, Plaintiffs have alleged that the Defendants violated the Fifth and Fourteenth Amendments when they acted under color of state law in bringing spurious proceedings against Plaintiffs under New Jersey's Prevailing Wage Laws. The Plaintiffs assert that the New Jersey Department of Labor ("DOL") essentially has ceded authority to the Defendants*fn2 to bring actions against employers who are alleged not to have paid the appropriate wages. The Plaintiffs contend that the Defendants have brought meritless claims against them in order to harass them. They further allege that the Defendants engaged in this conduct because they do not, but want to, represent the Plaintiffs' employees.

According to the Complaint, United Steelworkers AFL-CIO ("USW") is the exclusive representative of PKF's employees for collective bargaining purposes. Thus, Plaintiffs' theory is that Defendants wish to displace USW as the exclusive collective bargaining representative of PKF's employees for purposes of collective bargaining for wages, hours, and other terms and conditions of employment. To that end, Defendants allegedly acted under color of state law to expose PKF "to meritless and expensive audits, and debarment proceedings brought by the DOL arising out of the administration of the Prevailing Wage Laws." (Compl. ¶ 39 (emphasis added).)

The Complaint contains five counts, each asserted against all Defendants. Counts 1 through 3 are brought under 42 U.S.C. § 1983. Count 1 alleges violation of the Plaintiffs' substantive due process rights. Count 2 alleges violation of the Plaintiffs' procedural due process rights. Count 3 alleges violation of the Plaintiffs' equal protection rights. The Plaintiffs also bring two state law claims: interference with present and prospective contractual relationships (Count 4) and civil conspiracy (Count 5).

By way of the instant motions, the Defendants seek summary judgment because the conduct set forth as the basis of the Complaint does not constitute "state action," as required by section 1983. A motion to dismiss based on this ground was denied by this Court in December of 2008, and discovery proceeded.

II. DISCUSSION

A. Summary Judgment Standard "Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). The Court will enter summary judgment in favor of a movant who shows that it is entitled to judgment as a matter of law, and supports the showing that there is no genuine dispute as to any material fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56 (c)(1)(A).

An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. "A nonmoving party may not 'rest upon mere allegations, general denials or . . . vague statements . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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.

Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that "an adverse party cannot produce admissible evidence to support the [alleged dispute of] fact." Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2).

In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determinations are the province of the ...


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