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James Boland, et al v. Fortis Construction

July 12, 2011

JAMES BOLAND, ET AL.,
PLAINTIFFS,
v.
FORTIS CONSTRUCTION COMPANY, LLC, DEFENDANT.



The opinion of the court was delivered by: Judge Beryl A. Howell

MEMORANDUM OPINION

Trustees of the Bricklayers and Trowel Trades International Pension Fund (hereinafter "IPF")*fn1 filed this case against defendant Fortis Construction Company, LLC (hereinafter "Fortis"), seeking to collect employer withdrawal liability pursuant to the Multiemployer Pension Plan Amendment Act (hereinafter "MPPAA") and the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"). Defendant Fortis has moved to dismiss the Complaint on grounds that the Court lacks both subject matter and personal jurisdiction, and is the improper venue for the case. Alternatively, the defendant has requested the Court to transfer the case to the United States District Court for the Western District of Missouri. For the reasons set forth below, the defendant's motion to dismiss or for change of venue is denied.

I.BACKGROUND

Plaintiffs allege that at some unspecified time prior to 2008, Diaz Construction Co., Inc. (hereinafter "Diaz Construction"), a building and construction company based in Missouri, executed a collective bargaining agreement with the Bricklayers and Trowel Trades International Union (hereinafter "the Union") and its local affiliates. Compl. ¶¶ 5-6. Although the parties do not supply the agreement or state Diaz's obligation under the CBA, the plaintiffs state that pursuant to such contracts, "employers are obligated to make contributions to the Fund in order to fund the benefits provided to the participants and beneficiaries." Pls.' Opp'n Mot. Dismiss, ECF No. 6, Ex. A, David F. Stupar Decl. (hereinafter "Stupar Decl."), ¶ 2. The defendant does not appear to contest the obligations of Diaz Construction, as a signatory with the Building and Allied Craftworkers Union, Local 15, to make such payments. Def.'s Reply, ECF No. 7, Ex. A, Armando Diaz Decl. (hereinafter "Diaz Decl."), ¶¶ 5-6.

On May 12, 2008, Armando Diaz, formerly doing business as Diaz Construction, filed a Chapter 7 petition for bankruptcy protection in the United States Bankruptcy Court for the Western District of Missouri. Compl. ¶ 7. While Mr. Diaz's interests in Diaz Construction became property of the bankruptcy estate pursuant to 11 U.S.C. § 541(a)(1) -- and Diaz Construction ceased to exist following liquidation of the company's assets pursuant to Chapter 7 of the Bankruptcy Code -- plaintiffs allege that defendant Fortis is "the successor to, continuation of, alter ego of, and/or under the same management and stock control as Diaz Construction," and is therefore liable for Diaz Construction's debts and obligations. Compl. ¶¶ 4, 5, 9. To support this contention, plaintiffs allege that Fortis and Diaz Construction "shared some officers, directors, and equipment" and that Fortis "performed the same type of work in the same geographic areas as that performed by Diaz Construction." Id. ¶ 8.

While the defendant generally denies the plaintiffs' alter ego allegation, it confirms that Armando Diaz, the former sole owner of Diaz Construction, is now the "Managing Member of Fortis" and one of "five members who own an interest in Fortis." Diaz Decl., ¶¶ 1, 3, 5. According to Mr. Diaz's declaration, he operated Diaz Construction from 1991 to May 2007 and, following the bankruptcy of Diaz Construction in May 2008, began serving as a managing member of Fortis on October 30, 2009. Id. ¶¶ 1,5.

Based on the plaintiffs' determination that Fortis is Diaz Construction's alter ego, the plaintiffs concluded that the defendant withdrew from the IPF under Section 4203(b) of ERISA, 29 U.S.C. § 1383(b), which states that a building and construction employer "withdraws" from a plan if the employer ceases to have an obligation to contribute under the plan and either (1) continues to perform work in the jurisdiction of the collective bargaining agreement, or (2) resumes such work within five years after the date on which the obligation to contribute to the plan ceased. Compl. ¶¶ 10, 11. On April 6, 2010, the IPF notified the defendant that it owed $453,577.00 of "Withdrawal Liability" pursuant to Sections 4201 and 4219 of ERISA, 29 U.S.C. §§ 1381 and 1399, and demanded payment on a schedule set in accordance with Sections 4202 and 4219(b)(1) of ERISA, 29 U.S.C. §§ 1382 and 1399(b)(1). Id. ¶ 11. Under the payment schedule, the defendant was "to submit $25,892.43 to the IPF on or before June 7, 2010, $25,892.43 per month for 17 additional months, and a final payment of $1,162.83." Id. ¶ 12.

Plaintiffs allege that despite sending notice to the defendant of its withdrawal liability, the defendant failed to make payments pursuant to the schedule. Id. ¶ 13; Stupar Decl., ¶ 9. Plaintiffs then sent the defendant a letter informing the defendant that if it did not begin making interim payments within 60 days, by August 28, 2010, it would be deemed in default pursuant to 29 U.S.C. § 1399(c)(5) and internal IPF Withdrawal Liability Procedures. Compl. ¶ 13, Ex. B. In response, the defendant requested a review of the plaintiffs' Withdrawal Liability assessment and the plaintiffs responded to this request. Id. ¶ 14. According to the plaintiffs, todate the defendant has not submitted payments for withdrawal liability, nor has it initiated arbitration proceedings.*fn2 Id.

On October 15, 2010, the plaintiffs filed a Complaint alleging that because of the defendant's failure to submit withdrawal liability payments, the defendant is in default under Sections 4219(c)(5) of ERISA, 29 U.S.C. § 1399(c)(5), and the full amount of the Withdrawal Liability is now due. Id. ¶ 15. Plaintiffs further assert that the alleged default should be treated in the same manner as delinquent contributions under Sections 4219(c)(5) and 4301(b) of ERISA, 29 U.S.C. §§ 1399(c)(5) and 1451(b),*fn3 and under the IPF's internal Withdrawal Liability Procedures. Id. ¶ 16.

Plaintiffs request the Court to declare the defendant an alter ego of Diaz Construction, and award the plaintiffs $547,997.62, which represents the defendant's outstanding Withdrawal Liability of $453,577.00; interest in the amount of $3,355.22, liquidated damages of $90,715.40, litigation costs, and attorneys' fees. Compl., Prayer for Relief, ¶¶ 1-4.*fn4

On December 8, 2010, the defendant moved to dismiss the Complaint on three grounds: (1) the Court lacks subject matter jurisdiction over the plaintiffs' claims, which are predicated on the erroneous conclusion that the defendant is the alter ego of Diaz Construction; (2) the Court lacks personal jurisdiction over the defendant; and (3) the District of Columbia is the improper forum to litigate this case. In the alternative, the defendant requests the Court to transfer this case to the Western District of Missouri, which the defendant argues is the proper venue for this case. For the foregoing reasons, the Court denies the defendant's motion to dismiss or for transfer of venue. The Court addresses each of defendant's arguments seriatim below.

II.STANDARD OF REVIEW

Federal courts are fora of limited jurisdiction, only possessing the power authorized by the Constitution and statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id. (internal citations omitted). Therefore, when a defendant brings a motion to dismiss for lack of subject matter or personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) or (2), "the [p]laintiff bears the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction." Hollingsworth v. Duff, 444 F. Supp. 2d 61, 63 (D.D.C. 2006) (citing Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002)); see also Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir. 1990); Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998)).

The Court generally "assume[s] the truth of all material factual allegations in the complaint and construe[s] the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged, and upon such facts determine jurisdictional questions." American Nat. Ins. Co. v. FDIC, No. 10-cv-5245, 2011 WL 2506043, at *1 (D.C. Cir. June 24, 2011) (internal citations and quotations omitted); see also Crane, 894 F.2d at 456 ("[F]actual discrepancies appearing in the record must be resolved in favor of the plaintiff."); DSMC, Inc. v. Convera Corp., 273 F. Supp. 2d 14, 20 (D.D.C. 2002) (the plaintiff's factual assertions in the Complaint are "presumed to be true unless directly contradicted by affidavit").*fn ...


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