Intern. Union of Bricklayers v. Menard & Co.

• Decision Date: 17 October 1985
• Docket Number: Civ. A. No. 85-0413-S.
• Citation: 619 F. Supp. 1457
• Parties: INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTSMEN, LOCAL # 1 OF RHODE ISLAND; Rhode Island Bricklayers and Allied Craftsmen Health & Welfare Fund; Rhode Island Bricklayers and Allied Craftsmen Pension Fund; Rhode Island Bricklayers and Allied Craftsmen Annuity Fund; Rhode Island Bricklayers and Allied Craftsmen Joint Apprenticeship Fund; and Bricklayers and Trowel Trades International Pension Fund, Plaintiffs, v. MENARD & CO. MASONRY BUILDING CONTRACTORS and the Edward Nunes Corporation, Defendants.
• Court: U.S. District Court — District of Rhode Island

619 F. Supp. 1457

INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTSMEN, LOCAL # 1 OF RHODE ISLAND; Rhode Island Bricklayers and Allied Craftsmen Health & Welfare Fund; Rhode Island Bricklayers and Allied Craftsmen Pension Fund; Rhode Island Bricklayers and Allied Craftsmen Annuity Fund; Rhode Island Bricklayers and Allied Craftsmen Joint Apprenticeship Fund; and Bricklayers and Trowel Trades International Pension Fund, Plaintiffs, v. MENARD & CO. MASONRY BUILDING CONTRACTORS and the Edward Nunes Corporation, Defendants.

Civ. A. No. 85-0413-S.

United States District Court, D. Rhode Island.

October 17, 1985.

Abedon, Michaelson, Stanzler & Biener, Julius C. Michaelson, Providence, R.I., for plaintiffs.

Wistow, Barylick & Bruzzi, Inc., Robert S. Bruzzi, Providence, R.I., for defendant Menard.

Visconti & Heald, Ltd., Thomas W. Heald, Providence, R.I., for defendant Nunes.

MEMORANDUM AND ORDER

SELYA, District Judge.

This case, in the embryonic pleading stages, raises a set of interesting threshhold questions. Nevertheless, the tangram is not so intricate as appears at initial blush.

I.

To put matters into proper perspective, it is necessary first to parse the complaint. The action was brought on July 3, 1985 by six separate plaintiffs, viz., the International Union of Bricklayers and Allied Craftsmen, Local # 1 of Rhode Island (the "Union") and a quintet of employee benefit funds (hereinafter collectively the "Funds").¹ The complaint is inartfully drawn. It comprises a single count, which embodies what are in reality multiple statements of claim. Inasmuch as landmines dot the legal terrain, the allegations must be carefully charted.

In what amounts to a jurisdictional statement, the complaint proclaims that the action is being prosecuted under both the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1381 and § 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185(a). The plaintiffs' jurisdictional claim is, by its terms, premised on both ERISA, specifically, §§ 1132(e)(1) and (f), and the LMRA, specifically §§ 185(a)-(c). The Funds are said to have dual personalities: each is styled as a "trust fund" established in accordance with the provisions of 29 U.S.C. § 186(c) and each is an "employee pension benefit plan" ("EBP") as delineated by 29 U.S.C. § 1002(2).

There are a brace of defendants. The first, Menard & Co. Masonry Building Contractors ("Menard"), is a Rhode Island corporation which is allegedly a party to a collective bargaining agreement ("Agreement") with the Union. Although the Agreement is neither appended to the complaint nor otherwise of record in this proceeding, the plaintiffs aver that it contains provisions requiring Menard (i) to make certain contributions to the Funds, depending upon the number of hours worked by employees subject to the Agreement, and (ii) to effectuate certain deductions from wages due to those employees who enjoy membership in the Union (principally in the form of a dues check-off) and to remit the retained amounts to the Union. The second defendant, The Edward Nunes Corporation ("Nunes"), is likewise a Rhode Island corporation; Nunes is alleged to be the "alter ego" of Menard.² The plaintiffs say that Nunes, as an alter ego, is bound by and subject to all of the burdens and obligations of the Agreement.

The complaint points out that, as the plaintiffs see it, the defendants have failed for the last several years in their contractual duty to tender monies to the Funds and to deduct and remit check-off sums due to the Union. (Although not alleged in so many words, the sense of the complaint seems to be that Menard has used Nunes as a subterfuge in an effort to evade these responsibilities, and that the shortfall in payments relates to hours worked by persons nominally on Nunes's payroll — but who are, in reality, part and parcel of Menard's workforce.) The Funds claim entitlement to the delinquent contributions, together with interest and associated penalties specified in the Agreement; the Union claims entitlement to the missing check-off payments, along with interest and the like as per the Agreement. And, the plaintiffs pray, inter alia, for liquidated damages under ERISA, see 29 U.S.C. § 1132(g)(2), disbursements authorized by the same legislation, id. at § 1132(g)(1), and a full audit (the cost of which should, in their view, be borne by Menard and/or Nunes).

The defendants are alleged to be jointly and severally liable to the Funds and to the Union. Both Menard and Nunes are, according to the complaint, employers engaged in an industry affecting commerce, within the collective definitions ascribed to that incantation by ERISA, 29 U.S.C. §§ 1002(5), (11), (12), and by the LMRA, 29 U.S.C. §§ 152(2), (6), (7).

II.

Following service of the complaint, Menard moved to dismiss for want of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), and for the supposed failure of the real parties in interest to prosecute the action. Fed.R.Civ.P. 17(a).³ Nunes, through distinct counsel, filed a substantially identical motion. The plaintiffs objected. Oral arguments were heard by the court on September 18, 1985, and the matter was taken under advisement. The court now turns to the task at hand, cognizant withal that, on threshhold motions such as these, it must accept as true all facts well-pleaded in the complaint, affording to the plaintiffs the benefit of all favorable inferences reasonably to be drawn therefrom. Tuvia Convalescent Center, Inc. v. National Union of Hospital and Health Care Employees, 717 F.2d 726, 729 n. 1 (2d Cir.1983); Fricker v. Town of Foster, 596 F.Supp. 1353, 1354 (D.R.I.1984) ("the court will not dismiss a complaint for want of subject matter jurisdiction unless it clearly appears that no colorable hook exists upon which the court's jurisdiction may be hung").

III.

A. ERISA Jurisdiction

The plaintiffs' initial handhold on the jurisdictional ladder is their claim that, inasmuch as the Funds fall within the definitional purview of ERISA, see 29 U.S.C. § 1002(2), ERISA confers subject matter jurisdiction over their attempt to force the defendants to disgorge omitted plan contributions. But, the matter is not as cut-and-dried as the Funds suggest.

The federal district courts possess limited, rather than plenary, jurisdiction. The boundaries of that jurisdiction are subject to the will of Congress. Federal courts should not widen the encincture of their jurisdiction without clear authority from the national legislature. Middlesex County Sewerage Authority v. National Sea Clammers Assoc., 453 U.S. 1, 13-18, 101 S.Ct. 2615, 2622-25, 69 L.Ed.2d 435 (1981); Dalehite v. United States, 346 U.S. 15, 30-31, 73 S.Ct. 956, 965, 97 L.Ed.2d 1427 (1953); Rice v. Railroad Co., 66 U.S. (1 Black) 358, 374, 17 L.Ed. 147 (1861). The question thus becomes whether ERISA, fairly construed, grants jurisdiction to the district courts in a situation of this kind.

The plain language of ERISA itself militates against the plaintiffs' position. To be sure, 29 U.S.C. § 1132(e)(1) cedes to the district courts "exclusive jurisdiction of civil actions brought by the Secretary of Labor or by a participant, beneficiary or fiduciary in or of an EBP." But, this language fails to catalyze any rights on the part of the Funds; it would take far too many liberties with ordinary meaning to consider an EBP as being among its own participants/beneficiaries/fiduciaries.

ERISA's civil enforcement provisions deal with standing in much the same fashion. 29 U.S.C. § 1132(a)⁴ provides that civil actions may be brought by the Secretary of Labor and by participants, beneficiaries, and fiduciaries of ERISA trusts to redress ERISA violations. There is nothing in § 1132(a) which betokens any congressional intent to vest ERISA-spawned rights of action in any more broadly defined classes. And, the legislative history is barren of any such indication. See, e.g., H.R.Conf.Rep. No. 1280, 93d Cong., 2d Sess., reprinted in U.S. Code Cong. & Ad. News 4639, 5038, 5109 (1974). Where Congress has carefully catalogued a select list of persons eligible to sue in a federal forum under ERISA, it seems gratuitous — and wrong — for the courts to override that policy judgment by expanding the array.

The Funds argue, however, that the congressional roster, no matter how precisely drawn, need not be viewed as exclusive. They find solace in Fentron Industries, Inc. v. National Shopmen Pension Fund, 674 F.2d 1300 (9th Cir.1982). In Fentron, the Ninth Circuit held that an employer — that is, a non-participant, non-beneficiary, non-fiduciary — could sue for ERISA redress. The court of appeals found that § 1132, viewed in the albedo of its legislative history, in no way "suggested either that the list of parties empowered to sue under § 1132(a) is exclusive or that Congress intentionally omitted employers." Fentron, 674 F.2d at 1305. See also Michigan United Food and Commercial Workers Unions v. Baerwaldt, 572 F.Supp. 943, 947 (E.D.Mich.1983) (permitting suit for declaratory and injunctive relief brought by health and welfare fund under color of ERISA jurisdiction to proceed).

Fentron, however, appears to stand logic on its head. Given the natural constraints on the scope of federal jurisdiction, see text ante, at 1459-60, the question is not whether the national legislature affirmatively intended to bar suits by employers, trust funds, and others not specifically identified in § 1132(a)'s laundry list, but whether Congress affirmatively intended that unnamed others should be permitted access to a federal forum. And, there is no cogent evidence of such an open-door policy.

This court rejects the reasoning and result of Fentron in favor of a stricter construction of the statute. Such a change in emphasis is best exemplified by the Second Circuit's opinion in Pressroom Unions-Printers League Income Security Fund v. Continental Assurance Co., 700 F.2d 889, 892-93 ...