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Boland v. Cacper Constr. Corp.

United States District Court, D. Columbia.

September 17, 2015

JAMES BOLAND et al., Plaintiffs,
v.
CACPER CONSTRUCTION CORP. et al., Defendants

          For 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.

Page 380

         MEMORANDUM OPINION AND ORDER

         CHRISTOPHER R. COOPER, United States District Judge.

         On 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

Page 381

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.

         In a 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.

         If 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.

         Nonetheless, 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 of $31,367.22.

         I. Background

         As 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

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funded pensions and other benefits to employees working under contracts negotiated by Bricklayer local unions and employers. Stupar Decl. ¶ 3.

         The IPF 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 ...


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