United States District Court, W.D. Wisconsin
WISCONSIN MASONS HEALTH CARE FUND, WISCONSIN MASONS APPRENTICESHIP & TRAINING FUND, GARY BURNS, BRICKLAYERS & TROWEL TRADES INTERNATIONAL PENSION FUND, INTERNATIONAL MASONRY INSTITUTE, BRICKLAYERS & ALLIED CRAFTWORKERS DISTRICT COUNCIL OF WISCONSIN, WISCONSIN LABORERS HEALTH FUND, BUILDING & PUBLIC WORKS LABORERS VACATION FUND, WISCONSIN LABORERS APPRENTICESHIP & TRAINING FUND, JOHN J. SCHMITT, WISCONSIN LABORERS-EMPLOYERS COOPERATION AND EDUCATION TRUST FUND, WISCONSIN LABORERS DISTRICT COUNCIL, BUILDING TRADES UNITED PENSION TRUST FUND, SCOTT J. REDMAN, and INDUSTRY ADVANCEMENT PROGRAM/CONTRACT ADMINISTRATION, Plaintiffs,
SID'S SEALANTS, LLC, and SIDNEY N. ARTHUR, Defendants.
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE.
various labor organizations (unions) and employee benefit
plans (funds) and their trustees and fiduciaries, bring
claims against defendants Sid's Sealants, LLC, and Sidney
N. Arthur for violations of the Employee Retirement Income
Security Act of 1974 (ERISA) and the Labor Management
Relations Act of 1947 (LMRA). Dkt. 14. Plaintiffs allege that
Sid's Sealants, LLC, failed to make contributions to the
plaintiff funds, in violation of collective bargaining
agreements, trust plans, and trust agreements. Sid's
Sealants, LLC, deducted and withheld working dues from their
employees but failed to submit those dues to the plaintiff
unions. Plaintiffs allege that Arthur kept the unremitted
union dues for himself, in violation of Wis.Stat.
§§ 895.446 and 943.20 (civil theft). Defendants
answered and asserted five counterclaims against plaintiffs.
plaintiffs move to dismiss defendants' counterclaims
pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. 6.
Because defendants have failed to plead any actionable
counterclaims, the court will grant plaintiffs' motion in
court draws the following facts from defendants'
pleading, Dkt. 16, and construes the allegations “in
the light most favorable to the [defendants], accepting as
true all well-pleaded facts alleged, and drawing all possible
inferences in [their] favor.” Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
answering plaintiffs' first amended complaint, defendants
deny that they have violated any collective bargaining
agreements, trust plans, or trust agreements, that they have
refused to submit contributions, and that they have violated
any federal or state law. Dkt. 16, ¶ 1. Then defendants
repaint the landscape: contrary to plaintiffs'
allegations, at no point was Sid's Sealants, LLC, party
to a collective bargaining agreement with the Wisconsin
Bricklayers District Council, and at no point did the LLC
assume rights and obligations under a collective bargaining
agreement with the Wisconsin Bricklayers District Council.
Id. ¶ 17. The Bricklayers unions never
requested that its collective bargaining agreement with
Arthur's sole proprietorship-an entity that preceded the
LLC but that no longer exists-be assigned to the LLC named
here. Defendants admit that Sid's Sealants, LLC, signed a
collective bargaining agreement with the Wisconsin Laborers
District Council and that the LLC agreed to and did make
timely payments to those unions.
absence of a binding collective bargaining agreement,
defendants made voluntary payments to the
“various funds, ” including the Bricklayers
unions. Id. ¶ 22. Defendants made
“voluntary payments” to plaintiffs “for
past due voluntary contributions.” Id.
Defendants have paid plaintiffs $561, 122.60 since March
2012. That “amount exceed[ed] the amount that would
have been due” had defendants been legally obligated to
make contributions to the Bricklayers unions, and it
“exceed[ed] the amount due the Laborer Unions
Plaintiffs' [sic].” Id.
April 2012 and November 2016, defendants repeatedly requested
an accounting of the voluntary payments that they have made,
“to determine whether there is in fact any obligation
for additional payments, whether voluntary or
otherwise.” Id. ¶ 42. Neither plaintiffs
nor plaintiffs' counsel responded. Defendants suspect
that plaintiffs did not properly credit the payments, or
credited them “in such a manner as to generate late
fees, penalties, and interest obligations.”
Id. ¶ 43. Defendants demand an accounting and
bring counterclaims for conspiracy to injure business
reputation, breach of fiduciary duty, conversion and civil
theft, and tortious interference with contract.
motion to dismiss pursuant to Rule 12(b)(6) tests the
complaint's legal sufficiency.
state a claim upon which relief can be granted, a complaint
must provide a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Rule 8 “does not require
‘detailed factual allegations, ' but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). A complaint must offer “more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555 (citations omitted).
attack all five of defendants' counterclaims. The court
will address each in turn.
Conversion and civil theft
allege that plaintiffs intentionally misapplied
defendants' payments and, as a result, committed common
law conversion and civil theft in violation of Wis.Stat.
§§ 895.446 and 943.20. Had plaintiffs applied
defendants' payments “to the appropriate funds,
” “there would be no amounts due and owing”