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Flynn v. Tiede-Zoeller

January 24, 2006


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


In this action, the trustees of the Bricklayers & Trowel Trades International Pension Fund ("Trustees" or "Fund"), a multi-employer employee benefit plan governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., allege that TiedeZoeller Tile Corp. ("TZ Corp."), Tiede-Zoeller, Inc. ("TZ Inc."), and Tiede-Zoeller Associates, Inc. ("TZ Associates") (collectively, "Tiede-Zoeller") failed to make certain contributions to the Fund and several related funds in violation of ERISA. Before the court is Tiede-Zoeller's motion to dismiss the amended complaint (Dkt. #16)*fn1 and its motion to bifurcate (Dkt. #26). Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes that the motion to dismiss must be granted in part and denied in part, and the motion to bifurcate must be denied.


The Fund provides pension and other benefits to employees working in the building and construction industry under collective bargaining agreements negotiated between local unions and employers. Pursuant to these agreements, employers are obligated to make contributions to the Fund in order to pay for the benefits provided to the Fund's beneficiaries. Employers are also obligated to submit monthly reports that detail the number of hours employees have worked that are covered by the collective bargaining agreements. The Trustees have a fiduciary duty under ERISA to collect delinquent employer contributions and can be held personally liable for their failure to do so.*fn2

The instant case arises from a series of collective bargaining agreements to which the Fund asserts TZ Corp. was a party. At the forefront of the dispute is an agreement between TZ Corp. and the International Union of Bricklayers and Allied Craftsmen ("BAC"), Southern Tier Administrative District Counsel, New York,*fn3 an affiliate of the International BAC ("Southern Tier Agreement").*fn4 In addition to the "Southern Tier Agreement," the Fund asserts that TZ Corp. entered into three other collective bargaining agreements that, taken together, form the basis for Tiede-Zoeller's liability. These agreements include (1) an agreement with BAC Local No. 3, Buffalo, N.Y., Chapter ("New York Agreement"); (2) an agreement with BAC Subordinate Local No. 33, Georgia, North Carolina, and South Carolina ("BAC Local, Georgia"), effective June 5, 2001 ("Georgia June Agreement); and, finally; (3) an agreement with BAC Local, Georgia, effective July 1, 2001 ("Georgia July Agreement").

Each of these agreements, to varying degrees, obligated TZ Corp. to make contributions to the Fund. While only TZ Corp. was a signatory to each agreement, the Fund maintains that TZ Inc. and TZ Associates were also obligated by the collective bargaining agreements, and pursuant to ERISA, to make payments to the Funds. According to the Trustees, TZ Inc. and TZ Associates shared "the same place of business, interlocking directors, common control, common type of work, and same or similar employees" with TZ Corp. Compl. ¶ 17. Based on this alleged relationship, the Trustees insist that TZ Inc. and TZ Associates were "alter egos," of TZ Corp., and thus subject to the terms of the collective bargaining agreements executed by TZ Corp. Despite this alleged duty to comply with the agreements, the Trustees maintain that neither TZ Inc. nor TZ Associates prepared reports documenting the hours worked by covered employees, nor made any actual contributions.

The Trustees initiated the instant action to obtain permission to audit the financial records of each of the Tiede-Zoeller's companies, determine the amount of Tiede-Zoeller's delinquent contributions and, eventually, collect any contributions owed to the Fund.

Tiede-Zoeller now moves to dismiss the Trustees' amended complaint and to bifurcate the issues raised therein.


A. Legal Standard

A motion to dismiss is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Martin v. Ezeagu, 816 F. Supp. 20, 23 (D.D.C. 1993) (internal quotations omitted); see Conley v. Gibson, 355 U.S. 41, 45--46 (1957) (stating that a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"). In addition, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Ben. Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (stating that the court must give the plaintiff "the benefit of all inferences that can be derived from the facts alleged"). In evaluating a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court is limited to considering facts alleged in the complaint, any documents either attached to or incorporated in the complaint, matters of which the court may take judicial notice, EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997), and matters of public record, Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n.6 (D.C. Cir. 1993).

In the instant case, the parties have submitted a number of declarations and documents in support of, and in opposition to, Tiede-Zoeller's pending motions. Accordingly, the court notes that when matters outside the pleadings are presented to and not excluded by the court, and the court assures itself that such treatment would be fair to both parties, a motion to dismiss may be treated as one for summary judgment and disposed of as provided in Fed. R. Civ. P. 56. See Fed. R. Civ. P. 12(b); Americable Int'l Inc. v. Dep't of the Navy, 129 F.3d 1271, 1274 n.5 (D.C. Cir. 1997); Marshall County Health Care Auth., 988 F.2d at 1227. The decision to convert a motion to dismiss into a motion for summary judgment, however, is committed to the sound discretion of the trial court. See 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 at 159 (3d ed. 2004). Here, the court concludes that such treatment would be premature as the declarations submitted to the court are largely self-serving, and/or contradicted by opposing declarations.*fn5 As such, the conversion of Tiede-Zoeller's motion would do little to resolve the issues presented in this case.*fn6 In the absence of more extensive discovery, the court does not find it appropriate to consider the factual issues raised by these outside materials.

B. Exhaustion of Arbitration/Grievance Procedures

Tiede-Zoeller's first contention in support of its motion to dismiss is that the Trustees' claims pursuant to Section 301 of the National Labor Relations Act, 29 U.S.C. § 185, are barred by a failure to exhaust the contractual grievance procedures set forth in the collective bargaining agreements at issue. Tiede-Zoeller asserts that, assuming that it is bound by the terms of the collective bargaining agreements, plaintiffs are required to submit their complaint to arbitration prior to the initiation of a civil action.*fn7

As a threshold matter, the court believes that-despite extensive briefing-TiedeZoeller's argument remains somewhat ambiguous. Tiede-Zoeller's arguments are apparently directed towards the propriety of the International BAC pursuing claims pursuant to Section 301. The International BAC is not, however, a party to this action.*fn8 As discussed above, this lawsuit is brought by the Trustees of the Bricklayers & Trowel Trades International Pension Fund, an "employee benefit plan" within the meaning of Section 3(3) of ERISA, 29 U.S.C. § 1002(3), and a "multiemployer plan," as defined in Section 3(37) of ERISA, 29 U.S.C. § 1002(37), authorized to effect collections on behalf of various entities, among them, the International BAC. TiedeZoeller's briefs in support of its respective motions muddle the distinction between the Trustees and the International BAC, a distinction that carries significance. Nonetheless, because the Trustees, by their own admission, bring certain claims on behalf of the International BAC, the court will assume that whatever exhaustion requirements would apply to the International BAC, similarly would be applicable to the Trustees with respect to the claims asserted on the International BAC's behalf.

1. Local Union and International BAC as Single Entity

Turning to the merits of Tiede-Zoeller's argument, the record demonstrates that the signatories to the collective bargaining agreements are the local union bodies- (i) Southern Tier Administrative District Council 91, New York (ii) Local Union No. 3 N.Y. Buffalo Chapter, and (iii) Local No. 33 Georgia/North Carolina/South Carolina. See Am. Compl. Ex.'s A, B, C, & D. While acknowledging this fact, Tiede-Zoeller insists that the local unions and the international are ...

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