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Flynn v. Veazey Construction Corp.

March 24, 2004

JOHN FLYNN ET AL., PLAINTIFFS,
v.
VEAZEY CONSTRUCTION CORP., AND VEAZEY ENTERPRISES, INC., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.

Document Nos. 4, 7

MEMORANDUM OPINION

GRANTING THE PLAINTIFFS LEAVE TO FILE A SUR-REPLY; DENYING THE DEFENDANTS'MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO TRANSFER

I. INTRODUCTION

This case comes before the court on the plaintiffs' motion for leave to file a sur-reply and on the defendants' motion to dismiss or, in the alternative, to transfer. The plaintiffs seek to recover delinquent contributions under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001 et seq. First, because the defendants raise arguments for the first time in their reply, the court grants the plaintiffs' motion for leave to file a sur-reply. Second, because the plaintiffs have asserted fiduciary status, claims for delinquent contributions are not benefits under ERISA, and venue is proper in this district, the court denies the defendants' motion to dismiss. Finally, because the convenience of the parties and the witnesses and the interest of justice do not favor transfer, the court denies the motion to transfer.

II. BACKGROUND

A. Factual Background

The plaintiffs are trustees of the Bricklayers and Trowel Trades International Pension Fund ("IPF"), which is a multi-employer employee benefit plan under ERISA. Compl. ¶¶ 1, 3. The plaintiffs allege that they are authorized to effect collections on behalf of the IPF as well as on behalf of the Bricklayers & Allied Craftworkers International Health Fund ("IHF"), the International Masonry Institute ("IMI"), and the Bricklayers & Allied Craftworkers International Union ("BAC"). Id. ¶ 4. In addition, the plaintiffs claim that they are authorized, pursuant to an assignment of claims, to effect collections for Bricklayers Local 1 Texas, Louisiana & New Mexico funds, the Bricklayers Gulf Coast Pension Fund, the Bricklayers Apprenticeship and Training Fund of Houston-Galveston and BAC Processing Office (collectively, "the Local Unions"). Id.

The plaintiffs assert that the defendants executed a collective-bargaining agreement with the International Union of Bricklayers and Allied Craftsmen and its affiliated Local Unions, which obligated the defendants to make certain payments to the BAC, IPF, IHF, IMI, and the Local Unions on behalf of their covered employees. Id. ¶¶ 8, 11. Despite their obligations under the collective-bargaining agreement, the plaintiffs contend that the defendants failed to make all required contributions. Id. ¶ 12.

B. Procedural History

On March 24, 2003, the plaintiffs filed their complaint pursuant to section 502(a)(3) of ERISA. 29 U.S.C. § 1132(a)(3), and section 301 of the National Labor Relations Act, 29 U.S.C. § 185. In response, on May 21, 2003, the defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and under Rule 12(b)(3) for improper venue. In the alternative, the defendants ask the court to transfer venue pursuant to 28 U.S.C. §§ 1404(a) and 1406(a). On July 2, 2003, the plaintiffs filed a motion for leave to file a sur-reply. The court now turns to those motions.

III. ANALYSIS

A. Legal Standard for Leave to File a Sur-Reply

The decision to grant or deny leave to file a sur-reply is committed to the sound discretion of the court. Am. Forest & Paper Ass'n, Inc. v. Envtl. Prot. Agency, 1996 WL 509601, at *3 (D.D.C. Sept. 4, 1996). If the movant raises arguments for the first time in his reply to the non-movant's opposition, the court will either ignore those arguments in resolving the motion or provide the non-movant an opportunity to respond to those arguments by granting leave to file a sur-reply. Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003); Natural Res. Def. Council, Inc. v. Envtl. Prot. Agency, 25 F.3d 1063, 1072 n.4 (D.C. Cir. 1994); Pa. Elec. Co. v. Fed. Energy Regulatory Comm'n, 11 F.3d 207, 209 (D.C. Cir. 1993); see also Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 195 (D.C. Cir. 1992) (acknowledging that consideration of arguments raised for the first time in a reply would be "manifestly unfair" to the respondent); Corson & Gruman Co. v. Nat'l Labor Relations Bd., 899 F.2d 47, 50 n.4 (D.C. Cir. 1990) (requiring parties to raise all of their arguments in their opening briefs "to prevent sandbagging"); Robinson v. Detroit News, Inc., 211 F. Supp. 2d 101, 113 ...


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