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Eastern Missouri Laborers District Council v. Surecut Lawncare, LLC

United States District Court, E.D. Missouri, Eastern Division

January 31, 2018

EASTERN MISSOURI LABORERS DISTRICT COUNCIL, et al., Plaintiffs,
v.
SURECUT LAWNCARE, LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on defendant Surecut Lawncare, LLC's motion to dismiss plaintiffs' Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs oppose the motion, which is fully briefed and ripe for review. For the following reasons, the motion is denied. The Court will also address the parties' joint motion to be excused from mediation, which will be denied.

         I. Background

         This is an action brought by Eastern Missouri Laborers District Council and its affiliate, Laborers International Union of North America, Local 110, (collectively referred to as the “Union”) under Section 301 of the Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 185(a), against defendant Surecut Lawncare, LLC, d/b/a Surecut Lawncare, also d/b/a Surecut Solutions, and also d/b/a Farinella Bros. Landscaping (“Surecut”) for the collection of supplemental union dues.[1]

         In its Amended Complaint, the Union alleges that former defendant Farinella Bros. Landscaping, Inc. (“Farinella”) was a signatory to and bound by a collective bargaining bargaining agreement (“CBA”), which required Farinella to make supplemental union dues contributions to the Union on behalf of its employees. According to the Amended Complaint, Farinella owes supplemental union dues under the terms of the CBA.

         The Amended Complaint further alleges that while Surecut is not a signatory to the CBA, the defendant is bound by the terms of the CBA because it is the alter ego of Farinella. According to the Amended Complaint, Farinella was sold to Surecut in a ruse transaction on January 29, 2016. More specifically, the Amended Complaint alleges:

On information and belief, the St. Louis area operations of Surecut and Farinella have or had a common place of business, a common business purpose, common employees, common management (including common control of labor relations), common customers, common equipment, common bids (including many with the names of both companies before the alleged “sale” took place), a common phone number, and a common e-mail address.

         Doc. 7 at 2. Therefore, according to the Union, Surecut is the alter ego of Farinella, a signatory to the CBA. The Amended Complaint alleges that based on the alter ego relationship, Surecut remains bound to the terms of the CBA, which it has breached.

         For relief, the Union asks that the Court find Surecut is the alter ego of Farinella, and for an order that as the alter ego, Surecut is bound by the CBA. The Union also seeks damages. The Union alleges that it does not know how much Surecut owes in supplemental union dues without a financial examination of Surecut's books from 2015 to the present. The Amended Complaint seeks an order of accounting requiring Surecut to submit its books and records to an accountant to determine the amounts owed, and for a judgment based on this accounting. The Union also asks that the Court order “Surecut to make supplemental union dues payments in the future to the Union.” Id. at 4.

         Surecut responded to the Amended Complaint by filing a motion to dismiss pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. In its motion, Surecut argues that the Court lacks jurisdiction over this matter because the Amended Complaint does not allege a violation of a CBA that would fall under § 301 of the LMRA, but rather the dispute is a representational matter over which the National Labor Relations Board (NLRB) has exclusive jurisdiction pursuant to § 9(b) of the National Labor Relations Act (“NLRA”), 29 U.S.C. §159(b). Alternatively, Surecut argues that the relief the Union requests - that Surecut pay supplemental union dues to the Union - is prohibited under § 302 of the LRMA.

         II. Standard

         Surecut challenges the Court's jurisdiction to hear this case and moves to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. “In order to properly dismiss [an action] for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (citing Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990) (citation omitted)). Distinguishing between a facial and factual challenge is critical to determining how the Court should proceed when resolving a motion to dismiss for lack of subject matter jurisdiction. Under a facial challenge to jurisdiction, a court restricts itself to the face of the pleadings, Osborn, 918 F.2d at 729, n.6, and all of the factual allegations concerning jurisdiction in the plaintiff's complaint are presumed to be true, while under a factual challenge no presumptive truthfulness attaches. See Titus, 4 F.3d at 593 & n.1. The motion asserting a facial challenge will be successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Id. Here, Surecut makes a facial challenge to the Union's Amended Complaint. Accordingly, for purposes of this motion, all factual allegations are accepted as true.

         Surecut also moves to dismiss this case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the complaint. As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Id. at 570 (abrogating the traditional 12(b)(6) “no set of facts” standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). A plaintiff need not provide specific facts in support of his allegations, Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam), but must include sufficient factual information to provide the “grounds” on which the claim rests, and “to raise a right to relief above a speculative level.” Twombly, 550 U.S. at 555 & n.3. See also Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008). This obligation requires a plaintiff to plead “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A complaint “must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.” Id. at 562 (quoted case omitted). On a motion to dismiss, the Court accepts as true all of the factual allegations contained in the complaint, and reviews the complaint to determine whether its allegations show that the pleader is entitled to relief. Id. at 555-56; Fed.R.Civ.P. 8(a)(2).

         III. Discussion

         A. Motion to Dismiss for ...


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