United States District Court, D. Columbia.
JAMES BOLAND, HENRY KRAMER, GERARD SCARANO, TIMOTHY DRISCOLL,
EUGENE GEORGE, ROBERT HOOVER, MATTHEW AQUILINE, GREGORY R.
HESS, WILLIAM MCCONNELL, JOHN TRENDELL, FRED KINATEDER, as
Trustees of, and on behalf of, the BRICKLAYERS AND TROWEL
TRADES INTERNATIONAL PENSION FUND and the INTERNATIONAL
MASONRY INSTITUTE, GERALD O'MALLEY, as Trustee of, and on
behalf of, the BRICKLAYERS AND TROWEL TRADES INTERNATIONAL
PENSION FUND, JIM ALLEN, DON BROWN, TED CHAMP, BRUCE DEXTER,
MARK KING, KEN KUDELA, DAN KWIATKOWSKI, TIM MILLER, JIM
O'CONNOR, CHARLES RASO, MARK ROSE, KEVIN RYAN, MICHAEL
SCHMERBECK, JOSEPH SPERANZA, JEREMIAH SULLIVAN, JR., RICHARD
TOLSON, as Trustees of, and on behalf of, the INTERNATIONAL
MASONRY INSTITUTE, Plaintiffs: Charles Vincent Mehler, III,
DICKSTEIN SHAPIRO, LLP, Washington, DC.
OPINION AND ORDER
R. COOPER, United States District Judge.
November 19, 2014, trustees of two union pension funds
brought an action under the Employee Retirement Income
Security Act of 1974 (" ERISA" ), 29 U.S.C. §
1002 et seq., to recover unpaid contributions to those funds
from a defunct New York construction company and its
principal, Adam Kulig. Defendants never responded
to the complaint, the Clerk's entry of default, or the
Court's Order to Show Cause why judgment should not be
entered against them. Plaintiffs moved on March 19, 2015 for
an entry of default judgment against the company and Kulig.
On July 16, 2015, the Court issued an order granting
Plaintiffs' motion as to the company, but denying their
motion as to Kulig, noting that " liability for
delinquent pension contributions ordinarily does not extend
to individua l corporate officers." Mem. Op. & Order 1.
second effort to hold Kulig liable, Plaintiffs moved on
August 13, 2015 to alter or amend the judgment, claiming that
the Court " misapprehen[ded] . . . the basis for [their]
claim for personal liability" against Kulig. Pls.'
Mot. Alter or Amend J. 1. Plaintiffs suggest that the Court
mistakenly understood them to argue that Kulig was "
liable for delinquent pension contributions simply by virtue
of his status as a corporate owner or officer," id.,
when they were actually arguing that Kulig was liable "
based on the uncontested and therefore conceded allegation
that he continued to carry on the business of Cacper
Construction, beyond that necessary to wind up its affairs,
after the company was dissolved," id. at 1-2. According
to Plaintiffs, because " there is ample New York caselaw
holding a corporate owner personally liable in these
circumstances, the Court's July 16, 2015 judgment should
[be] altered so as to include a default judgment against
Kulig." Id. at 2.
Plaintiffs intended to argue that Kulig had taken on Cacper
Construction's liability, under New York law, as a result
of entering into collective bargaining agreements on
Cacper's behalf after it had dissolved, one would not
know it from reading Plaintiffs' Complaint or Motion for
Default Judgment. Indeed, Plaintiffs made only the conclusory
allegation that " Kulig has continued to carry on the
business of Cacper Construction after October 26, 2011 beyond
that necessary to wind up its affairs." Compl. ¶
15. Plaintiffs never spelled out what Kulig did to carry on
the business of Cacper, making it difficult to determine
whether his actions were or were not " necessary to wind
up [Cacper's] affairs." This perfunctory
presentation on Plaintiffs' part led the Court to
understand that Plaintiffs sought to hold Kulig " liable
for delinquent pension contributions simply by virtue of his
status as a corporate owner or officer." Pls.' Mot.
Alter or Amend J. 1.
based on the Court's own review of the collective
bargaining agreements submitted by Plaintiffs with their
complaint, it appears that Kulig did in fact operate Cacper
Construction in a manner beyond that necessary to wind up its
affairs post-dissolution. And based on the case law of New
York--which Plaintiffs neglected to cite or reference
anywhere in their memorandum of support for their Motion for
Entry of Default Judgment--the Court concludes that Kulig is
personally liable for the delinquent contributions. The Court
will therefore amend its judgment of July 16, 2015 so as to
include a default judgment against Kulig in the full amount
detailed in the Court's July 16, 2015 Memorandum Opinion
and Order, Cacper Construction Corp. is a dissolved New York
corporation that employed members of the International Union
of Bricklayers and Allied Craftworkers. Compl. ¶ ¶
5, 7. The construction company and the union entered into
collective bargaining agreements that obligated Cacper to
make payments to the Bricklayers & Trowel Trades
International Pension Fund (" IPF" ) and the
International Masonry Institute (" IMI" ).
Id. ¶ 7. These contributions
funded pensions and other benefits to employees working under
contracts negotiated by Bricklayer local unions and
employers. Stupar Decl. ¶ 3.
and the IMI are " employee benefit plans" and
" multiemployer plans" under ERISA. With these
designations come certain obligations. Pursuant to ERISA and
the funds' written procedures governing the collection of
employer contributions (" Collection Procedures" ),
Cacper was required to submit monthly reports and payments to
the IPF and IMI for covered employees. Stupar Decl. Attach.
1, at 1. Because Cacper failed to make the required
contributions, the trustees were entitled to file suit to
recover (1) 15 percent interest on those unpaid
contributions; (2) an additional assessment of 15 percent
interest per year or 20 percent of the delinquent
contributions, whichever is higher; and (3) attorneys'
fees and other ...