Flynn v. Veazey Const. Corp.

• Citation: 310 F.Supp.2d 186
• Decision Date: 24 March 2004
• Docket Number: Civil Action No. 03-0745 (RMU).
• Parties: John FLYNN et al., Plaintiffs, v. VEAZEY CONSTRUCTION CORP., and Veazey Enterprises, Inc., Defendants.
• Court: U.S. District Court — District of Columbia

Page 186

310 F.Supp.2d 186

John FLYNN et al., Plaintiffs, v. VEAZEY CONSTRUCTION CORP., and Veazey Enterprises, Inc., Defendants.

Civil Action No. 03-0745 (RMU).

United States District Court, District of Columbia.

March 24, 2004.

COPYRIGHT MATERIAL OMITTED

Ira R. Mitzner, Dickstein, Shapiro, Morin & Oshinsky, LLP, Washington, DC, for Plaintiffs.

Elizabeth Torphy-Donzella, Shawe & Rosenthal, LLP, Baltimore, MD, Samuel E. Hooper, Neel & Hooper, P.C., Houston, TX, for Defendant.

MEMORANDUM OPINION

URBINA, District Judge.

GRANTING THE PLAINTIFFS LEAVE TO FILE A SUR-REPLY; DENYING THE DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO TRANSFER

I. INTRODUCTION

This case comes before the court on the plaintiffs' motion for leave to file a sur-reply and on the defendants' motion to dismiss or, in the alternative, to transfer. The plaintiffs seek to recover delinquent contributions under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001 et seq. First, because the defendants raise arguments for the first time in their reply, the court grants the plaintiffs' motion for leave to file a sur-reply. Second, because the plaintiffs have asserted fiduciary status, claims for delinquent contributions are not benefits under ERISA, and venue is proper in this district, the court denies the defendants' motion to dismiss. Finally, because the convenience of the parties and the witnesses and the interest of justice do not favor transfer, the court denies the motion to transfer.

II. BACKGROUND

A. Factual Background

The plaintiffs are trustees of the Bricklayers and Trowel Trades International Pension Fund ("IPF"), which is a multi-employer employee benefit plan under ERISA. Compl. ¶¶ 1, 3. The plaintiffs allege that they are authorized to effect collections on behalf of the IPF as well as on behalf of the Bricklayers & Allied Craftworkers International Health Fund ("IHF"), the International Masonry Institute ("IMI"), and the Bricklayers & Allied Craftworkers International Union ("BAC"). Id. ¶ 4. In addition, the plaintiffs claim that they are authorized, pursuant to an assignment of claims, to effect collections for Bricklayers Local 1 Texas, Louisiana & New Mexico funds, the Bricklayers Gulf Coast Pension Fund, the Bricklayers Apprenticeship and Training Fund of Houston-Galveston and BAC Processing Office (collectively, "the Local Unions"). Id.

The plaintiffs assert that the defendants executed a collective-bargaining agreement with the International Union of Bricklayers and Allied Craftsmen and its affiliated Local Unions, which obligated the defendants to make certain payments to the BAC, IPF, IHF, IMI, and the Local Unions on behalf of their covered employees. Id. ¶¶ 8, 11. Despite their obligations under the collective-bargaining agreement, the plaintiffs contend that the defendants failed to make all required contributions. Id. ¶ 12.

B. Procedural History

On March 24, 2003, the plaintiffs filed their complaint pursuant to section 502(a)(3) of ERISA. 29 U.S.C. § 1132(a)(3), and section 301 of the National Labor Relations Act, 29 U.S.C. § 185. In response, on May 21, 2003, the defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and under Rule 12(b)(3) for improper venue. In the alternative, the defendants ask the court to transfer venue pursuant to 28 U.S.C. §§ 1404(a) and 1406(a). On July 2, 2003, the plaintiffs filed a motion for leave to file a sur-reply. The court now turns to those motions.

III. ANALYSIS

A. Legal Standard for Leave to File a Sur-Reply

The decision to grant or deny leave to file a sur-reply is committed to the sound discretion of the court. Am. Forest & Paper Ass'n, Inc. v. Envtl. Prot. Agency, 1996 WL 509601, at *3 (D.D.C. Sept.4, 1996). If the movant raises arguments for the first time in his reply to the non-movant's opposition, the court will either ignore those arguments in resolving the motion or provide the non-movant an opportunity to respond to those arguments by granting leave to file a sur-reply. Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C.Cir.2003); Natural Res. Def. Council, Inc. v. Envtl. Prot. Agency, 25 F.3d 1063, 1072 n. 4 (D.C.Cir.1994); Pa. Elec. Co. v. Fed. Energy Regulatory Comm'n, 11 F.3d 207, 209 (D.C.Cir.1993); see also Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 195 (D.C.Cir.1992) (acknowledging that consideration of arguments raised for the first time in a reply would be "manifestly unfair" to the respondent); Corson & Gruman Co. v. Nat'l Labor Relations Bd., 899 F.2d 47, 50 n. 4 (D.C.Cir.1990) (requiring parties to raise all of their arguments in their opening briefs "to prevent sandbagging"); Robinson v. Detroit News, Inc., 211 F.Supp.2d 101, 113 (D.D.C.2002) (denying leave to file a sur-reply where the proposed sur-reply merely reiterated prior arguments); Lewis v. Rumsfeld, 154 F.Supp.2d 56, 61 (D.D.C.2001) (denying leave to file a sur-reply where the plaintiff failed to demonstrate that the defendant's reply presented any new matters).

B. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(1)

Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938). Because "subject-matter jurisdiction is an `Art. III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir.2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxite de Guinea, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); Rasul v. Bush, 215 F.Supp.2d 55, 61 (D.D.C.2002) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-83, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). The court may dismiss a complaint for lack of subject-matter jurisdiction only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Empagran S.A. v. F. Hoffman-LaRoche, Ltd., 315 F.3d 338, 343 (D.C.Cir.2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

Because subject-matter jurisdiction focuses on the court's power to hear the claim, however, the court must give the plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C.Cir.2003); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001). Moreover, the court is not limited to the allegations contained in the complaint. Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Instead, to determine whether it has jurisdiction over the claim, the court may consider materials outside the pleadings. Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992).

C. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(3)

To prevail on a motion to dismiss for improper venue, the defendant must present facts that will defeat the plaintiff's assertion of venue. 2215 Fifth St. Assocs. v. U-Haul Int'l, Inc., 148 F.Supp.2d 50, 54 (D.D.C.2001) (citing 5A Fed. Prac. & Proc. 2d § 1352). In this circuit, there is "little case law on the question of where the burden of persuasion lies when a plaintiff's choice of venue is challenged." Johnson v. Wash. Gas Light Co., 89 F.Supp.2d 45, 47 (D.D.C.2000). Courts in the Fourth Circuit, however, have held that the plaintiff usually bears the burden of establishing that venue is proper. Gov't of Egypt Procurement Office v. M/V ROBERT E. LEE, 216 F.Supp.2d 468, 471 (D.Md.2002); Dunham v. Hotelera Canco S.A. de C.V., 933 F.Supp. 543, 550 (E.D.Va.1996); see also 5A Fed. Prac. & Proc. 2d § 1352 (noting that placing the burden on the plaintiff "seems correct inasmuch as it is plaintiff's obligation to institute his action in a permissible forum, both in terms of jurisdiction and venue").

D. The Court Grants the Plaintiff's Leave to File a Sur-reply

As a threshold matter, the court addresses the plaintiffs' motion to file a sur-reply. The plaintiffs contend that in their reply brief, the defendants make a new argument that they had not previously raised. Pls.' Mot. for Leave to File a Sur-reply at 1. Accordingly, the plaintiffs request leave to file the sur-reply attached as an exhibit to their motion. The court agrees that the defendants raise a new argument for the first time in their reply brief. Specifically, the defendants argue that ERISA's anti-alienation provision, 29 U.S.C. § 1056(d)(1), precludes assignment of the IHF, IMI and Local Unions claims. Defs.' Reply at 2. Because the defendants did not assert the anti-alienation argument in their opening brief, the court grants the plaintiffs' motion for leave to file a sur-reply to address this point and considers that sur-reply in ruling on the defendants' motion. Ben-Kotel, 319 F.3d at 536.

E. The Court Denies the Defendants' Rule 12(b)(1) and (b)(3) Motions to Dismiss

The defendants make several arguments for dismissal, none of which the court finds persuasive. As an initial matter, the defendants claim that because none of the plaintiffs are a participant, beneficiary or fiduciary of the IHF, IMI or Local Union funds, they are not the proper parties to bring suit.¹ Defs.' Mot. at 6-7. Essentially, the defendants argue that the plaintiffs do not...