United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' Partial Motion
to Dismiss and/or for More Definite Statement for Failure to
State a Claim upon which Relief can be Granted and Partial
Motion to Stay, filed February 11, 2019. (ECF No. 16). The
motion is fully briefed and ready for disposition.
filed their original Complaint in this matter on October 30,
2018, in an effort to collect fringe benefit contributions
allegedly due and owing from Defendants pursuant to
§§ 502 and 515 of the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C.
§§ 1132 and 1145, and Section 301 of the Labor
Management Relations Act of 1947 (“LMRA”), 29
U.S.C. § 185. (ECF No. 1). Plaintiffs further sought to
confirm an arbitration award and enforce the collective
bargaining agreement (“CBA”) pursuant to the
Missouri Uniform Arbitration Act and Section 301 of the LMRA.
filed their First Amended Complaint on December 17, 2018.
(ECF No. 6). In Count I of their First Amended Complaint,
Plaintiffs allege Defendant Taylor Roofing Solutions, Inc.
has been a party to a CBA with Plaintiff United Union of
Roofers, Waterproofers and Allied Workers, Local No. 2
(“Roofers Local 2”) since at least August 22,
2017. (FAC, ¶¶ 5, 27). Plaintiffs allege that
although the CBA required Taylor Roofing Solutions to, among
other things, make monthly contributions to the Pension Plan,
Education Plan, Supplemental Pension Plan, Welfare Fund, and
Apprentice Fund, and make monthly written reports to
Plaintiffs, Taylor Roofing Solutions has failed to make the
required contributions, submit the required reports, or
submit to a payroll audit. (Id., ¶¶
30-47). Plaintiffs thus maintain Taylor Roofing Solutions is
in breach of the CBA and in violation of Section 515 of
ERISA, 29 U.S.C. § 1145. Plaintiffs seek to hold Gerrit
Yank, the sole owner of Taylor Roofing Solutions, personally
liable for any and all obligations incurred by Taylor Roofing
Solutions. (Id., ¶¶ 14-16, 47-48).
In Count II, Plaintiffs seek to hold Defendants Capitol
Roofing Solutions and Beltran Contractors liable for damages,
claiming they either have operated as a single enterprise and
single employer with Taylor Roofing Solutions, and/or each is
the alter ego of the other. (Id., ¶¶
III and IV of Plaintiffs' First Amended Complaint are
brought solely by Roofers Local 2. (FAC, ¶¶ 54,
76). Roofers Local 2 claims the CBA between itself and Taylor
Roofing Solutions required the submission of any disputes
arising between the parties to the Roofers Local 2 Joint
Adjustment Board (“Joint Adjustment Board”).
(Id., ¶ 56). The Joint Adjustment Board then
had the power to investigate claims and impose remedies, and
decisions, awards and orders of the Joint Adjustment Board
were final and binding. (Id., ¶¶ 57, 58).
Roofers Local 2 claims the Joint Adjustment Board held a
hearing to decide a grievance filed by Roofers Local 2
against Taylor Roofing Solutions, and sustained the grievance
in a unanimous decision dated January 11, 2018.
(Id., ¶¶ 60-65). The Joint Adjustment
Board ordered Taylor Roofing Solutions to submit to a payroll
audit to determine the amount owed to Roofers Local 2.
(Id., ¶¶ 66-68).Roofers Local 2 claims that
despite this directive, Taylor Roofing Solutions has failed
and refused to provide all of the documents necessary for the
completion of the payroll audit. (Id., ¶ 71).
In Counts III and IV, Roofers Local 2 thus requests that the
Court confirm the arbitration award, order an accounting and
audit to determine the amounts due and owing, and award
Roofers Local 2 any and all available relief.
noted above, Defendants filed the instant motion on February
11, 2019. (ECF No. 16). Defendants claim (1) that Count I is
subject to dismissal as it fails sufficiently to plead a
claim for personal liability against Gerrit Yank, (2) that
Count II is subject to dismissal because it improperly
intertwines two distinct legal theories, single employer and
alter ego relationship, in a single count, and (3) that
Counts III and IV should be stayed pending determination of
charges currently pending before the National Labor Relations
noted above, in Count I of their First Amended Complaint
Plaintiffs allege Taylor Roofing Solutions has failed to make
required contributions, submit required reports, or submit to
a payroll audit, and that Gerrit Yank, as sole owner of
Taylor Roofing Solutions, should be held personally liable
for any and all obligations incurred by Taylor Roofing
Solutions. In the pending motion Defendants claim Count I is
subject to dismissal, as it fails sufficiently to plead a
claim for personal liability against Gerrit Yank.
Specifically, Defendants complain that as a basis for holding
Yank personally liable, Plaintiffs plead only “upon
information and belief” that he continued to operate
and carry on Taylor Roofing Solutions' business in a
manner other than for winding up and liquidating its affairs.
consideration, the Court will deny this portion of
Defendants' motion. Both Missouri and Illinois law
provide that under certain circumstances, individuals who
continue to conduct business on behalf of a dissolved
corporation may be held personally liable for obligations
incurred. See Mo. Rev. Stat. § 351.486.3; 805
ILCS 5/8.65(a)(3); 805 ILCS 5/3.20. See also Local 513,
Int'l Union of Operating Engineers, AFL-CIO v.
Susie's Const., Inc., 2010 WL 3724871, at *1 (E.D.
Mo. Sept. 17, 2010); Laborers' Pension Fund v.
Nationwide Environmental, 2011 WL 10755892, at *1 (N.D.
Ill. Mar. 16, 2011). The Court finds Plaintiffs'
allegations with respect to Gerrit Yank's actions
post-dissolution, while sparse, are sufficient to put
Defendants on notice as to the factual basis for their claim
against him. See Laborers' Pension Fund, 2011 WL
10755892, at *1; Resolution Trust Corp. v. Fiala,
870 F.Supp. 962, 978 (E.D. Mo. 1994) (“[T]he Court
finds that Plaintiff's Complaint sets forth [its]
allegations with sufficient clarity that Defendant reasonably
can be expected to frame a responsive
noted above, in Count II of their First Amended Complaint
Plaintiffs seek to hold Defendants Capitol Roofing Solutions
and Beltran Contractors liable for damages, claiming they
either have operated as a single enterprise and single
employer with Taylor Roofing Solutions, and/or each is the
alter ego of the other. Defendants claim Count II is subject
to dismissal as it improperly intertwines two distinct legal
theories, single employer and alter ego relationship, in a
single count. Defendants maintain Plaintiffs' claims of
single employer and alter ego present different theories of
liability, and thus must be separated or dismissed.
the single employer and alter ego doctrines are related, they
are conceptually distinct.” Iowa Exp. Distribution,
Inc. v. NLRB, 739 F.2d ...