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Boland v. Wasco, Inc.

United States District Court, D. Columbia.

June 13, 2014

JAMES BOLAND, et al., Plaintiffs/Counterclaim-Defendants,
WASCO, INC., et al., Defendants/Counterclaim-Plaintiffs

Re Document No.: 7.

For James Boland, Henry Kramer, Gerard Scarano, Timothy Driscoll, Gerald O'Malley, Eugene George, Robert Hoover, Matthew Aquiline, Gregory R. Hess, William Mcconnell, Charles Costella, John Trendell, Fred Kinateder, as Trustees of, and on behalf of, the BRICKLAYERS AND TROWEL TRADES INTERNATIONAL PENSION FUND, Plaintiffs, Counter Defendants: Charles Vincent Mehler, III, LEAD ATTORNEY, DICKSTEIN SHAPIRO LLP, Washington, DC.

For Wasco, Inc., Lovell's Masonry, Inc., Defendants: Daniel Z. Herbst, LEAD ATTORNEY, REED SMITH LLP, Washington, DC; Steven C. Douse, KING & BALLOW, Nashville, TN.

For Wasco, Inc., Lovell's Masonry, Inc., Counter Claimants: Steven C. Douse, KING & BALLOW, Nashville, TN.

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RUDOLPH CONTRERAS, United States District Judge.

Granting Plaintiffs' Motion to Dismiss Counterclaims


The plaintiffs in this action are James Boland and several other Trustees (" Trustees" ) of the Bricklayers & Trowel Trades International Pension Fund (" IPF" ). The IPF is an employee benefit plan and a multiemployer plan as defined under the Employee Retirement Income Security Act of 1974 (" ERISA" ). See Compl. ¶ ¶ 1, 3, ECF No. 1. Defendants Wasco Inc. and Lovell's Masonry (hereinafter collectively referred to as " WASCO" ) are building and construction industry employers who conduct business in Tennessee, and employ members of the Bricklayers & Trowel

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Trades International Union. See id. ¶ ¶ 4--6. The Trustees brought this action against WASCO pursuant to ERISA, seeking interim payments and enforcement of the terms of certain collective bargaining agreements between the parties. WASCO, meanwhile, counterclaimed, alleging violations of ERISA, the Labor-Management Relations Act (" LMRA" ), and the Racketeer Influenced and Corrupt Organizations Act (" RICO" ). See Countercl. ¶ ¶ 39--50, ECF No. 5. Pending before the Court is the Trustees' motion to dismiss WASCO's counterclaims. See ECF No. 7. For the reasons that follow, the Court will grant that motion.



Employer withdrawal liability was established by Congress in the Multiemployer Pension Plan Amendments Act (" MPPAA" ), which made various amendments to ERISA. " ERISA, as amended by the MPPAA, provides an elaborate system to ensure the financial integrity of multiemployer pension funds." Joyce v. Clyde Sandoz Masonry, 871 F.2d 1119, 1120, 276 U.S. App.D.C. 379 (D.C. Cir. 1989). " Congress passed the MPPAA in part because employers' withdrawals from multiemployer pension plans threatened those plans' solvency, and thus their ability to ensure that beneficiaries would ultimately receive benefits that were their due." Id.

Under the MPPAA, a building and construction industry employer " withdraws" from a multiemployer pension plan if (a) " an employer ceases to have an obligation to contribute under the plan," and (b) " the employer continues to perform work in the jurisdiction of the collective bargaining agreement of the type for which contributions were previously required, or resumes such work within 5 years after the date on which the obligation to contribute under the plan ceases." 29 U.S.C. § 1383(b)(2). " When an employer withdraws from a multiemployer plan," the plan sponsor is to " (1) determine the amount of the employer's withdrawal liability, (2) notify the employer of the amount of the withdrawal liability, and (3) collect the amount of the withdrawal liability from the employer." 29 U.S.C. § 1382.

B. Parties in This Case

On December 19, 2011, the IPF determined that Wasco Inc. and Lovell's Masonry had withdrawn from the IPF within the meaning of 29 U.S.C. § 1383(b) of ERISA, and therefore sent Wasco Inc. and Lovell's Masonry letters notifying them of their liability under 29 U.S.C. § § 1381, 1383(b), and 1399. See Compl. ¶ 9. Under the notices sent to Wasco Inc. and Lovell's Masonry, Wasco Inc. was obligated to pay the IPF $36,082.71 per month for 240 months beginning in February 2012, and Lovell's Masonry was obligated to pay $11,430.63 to the IPF for 153 months beginning in February 2012. See Compl. ¶ ¶ 10--11. WASCO made the first 12 payments, but failed to make any other payments under the payment schedules. As a result, the Trustees sent WASCO warning letters, seeking immediate payment of all outstanding withdrawal liability payments. See id. ¶ 13. When WASCO did not initiate any other payments, the Trustees filed the instant action, demanding the interim payment amounts, interest, liquidated damages, attorney's fees, and costs. See Compl. at 5--6.

WASCO, in turn, counterclaimed, alleging that the Trustees have conducted two audits of it since the late 1970s and that the " audit results were in each instance improperly inflated by demands for payment for work done by supervisors and other ineligible individuals." See Countercl.

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¶ ¶ 33--35. WASCO asserted the following three counterclaims: (1) violation of ERISA, " by causing WASCO [1] to pay more in pension contributions to the Fund than were actually owed and by increasing the amount of its withdrawal liability assessment" ; (2) violation of LMRA, for demanding " payments by an employer to an employee representative the detailed basis for which was not set forth in a written agreement with the employer" ; and (3) violation of the RICO Act. See Countercl. ¶ ¶ 39--50. The Trustees have moved to dismiss these counterclaims, arguing that (1) all counterclaims must be dismissed because WASCO was required to exhaust the arbitration process mandated by the MPPAA, (2) the LMRA claim must be dismissed because any LMRA violation is belied by WASCO's own pleading, and in any event, damages are not recoverable under 29 U.S.C. § 186, and (3) the RICO count must be dismissed because WASCO has not alleged a pattern of racketeering activity. See generally Pls.' Mem. Supp. Mot. to Dismiss Countercl. The Court analyzes each argument in turn.

III. ANALYSIS A. Legal Standard

" Under Federal Rule of Civil Procedure 12(b)(6), a counter-defendant may file a motion to dismiss to test 'the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.'" Embassy of Fed. Republic of Nigeria v. Ugwuonye, 901 F.Supp.2d 136, 139 (D.D.C. 2012); see also Armenian Assembly of Am., Inc. v. Cafesjian, 597 F.Supp.2d 128, 134 (D.D.C. 2009) (" The same standards [that govern a motion to dismiss a complaint] govern a motion to dismiss with respect to an opposing party's counterclaims." ).

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) " tests the legal sufficiency of a complaint," Browning v. Clinton, 292 F.3d 235, 242, 352 U.S. App.D.C. 4 (D.C. Cir. 2002), or in this case, a counterclaim. The motion does not test a plaintiff's ultimate likelihood of success on the merits, but only forces the court to determine whether a plaintiff has properly stated a ...

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