United States District Court, W.D. Wisconsin
WISCONSIN MASONS HEALTH CARE FUND, WISCONSIN MASONS APPRENTICESHIP & TRAINING FUND, GARY BURNS in his capacity as Trustee, BRICKLAYERS & TROWEL TRADES INTERNATIONAL PENSION FUND, INTERNATIONAL MASONRY INSTITUTE, WISCONSIN LABORERS HEALTH FUND, BUILDING & PUBLIC WORKS LABORERS VACATION FUND, WISCONSIN LABORERS APPRENTICESHIP & TRAINING FUND, JOHN SCHMITT in his capacity as Trustee, WISCONSIN LABORERS-EMPLOYERS COOPERATION AND EDUCATION TRUST FUND, WISCONSIN LABORERS DISTRICT COUNCIL, BUILDING TRADES UNITED PENSION TRUST FUND, SCOTT J. REDMAN in his capacity as Trustee, and INDUSTRY ADVANCEMENT PROGRAM/CONTRACT ADMINISTRATION, Plaintiffs,
SID'S SEALANTS, LLC, Defendant.
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
plaintiffs' second lawsuit against defendant Sid's
Sealants, LLC, for violations of the Employee Retirement
Income Security Act (ERISA) and the Labor Management
Relations Act. The previous lawsuit, No. 17-cv-28, was
dismissed with prejudice in September 2018 after the parties
settled their claims. Dkt. 42 ('28 case); Fed.R.Civ.P.
41(a)(1). In December 2018, plaintiffs filed a motion to
reopen that case, contending that Sid's violated the
settlement agreement. The court denied the motion because it
did not retain jurisdiction over the settlement agreement.
Dkt. 75 ('28 case).
then filed this lawsuit, asserting (1) the ERISA claims that
they previously raised in the '28 case, (2) new claims
that Sid's violated ERISA by withholding contributions
and by subcontracting work in violation of a collective
bargaining agreement, and (3) a claim for breach of the
settlement agreement. Dkt. 11. Sid's moves to dismiss all of
plaintiffs' claims. Dkt. 5. The court will grant the
motion in part, and it will dismiss all claims except for the
new subcontracting claim.
court will also grant Plaintiffs' motion for leave to
file a sur-reply. Dkt. 17. Although the sur-reply contains
several arguments that plaintiffs could have raised in their
brief in opposition, the sur-reply does not change the
court's decision, so accepting the brief does not
unfairly prejudice Sid's.
ERISA violations raised in the previous lawsuit
three of the complaint seeks to recover damages that
plaintiffs could have pursued under their claims in their
previous lawsuit, No. 17-cv-28. Sid's contends that these
claims are precluded by the earlier lawsuit or, in the
alternative, that the claims are not ripe. Plaintiffs respond
to the ripeness argument, but they do not acknowledge
Sid's arguments regarding claim preclusion.
preclusion bars plaintiffs' claims. The previous case was
dismissed with prejudice, Dkt. 42 ('28 case), involved
the same parties, and the claims in count three arise from
the same set of operative facts. See Matrix IV, Inc. v.
Am. Nat. Bank & Tr. Co. of Chicago, 649 F.3d 539,
547 (7th Cir. 2011) (explaining the elements of claim
preclusion); see also Golden v. Barenborg, 53 F.3d
866, 871 (7th Cir. 1995) (voluntary dismissal with prejudice
has preclusive effect). Because plaintiffs do not respond to
Sid's arguments or explain why the claims in count three
are not precluded, the court will dismiss count three.
New ERISA violations
say that Sid's has violated ERISA in two ways since the
last lawsuit. First, they allege that Sid's failed to
make timely contributions for hours worked in 2018. Second,
they allege that Sid's subcontracted union work in
violation of a collective bargaining agreement, and that it
owes contributions for the subcontracted work.
parties agree that the first claim is moot. After plaintiffs
filed their brief in opposition, Sid's paid all
contributions, interest, and liquidated damages that
plaintiffs alleged were owed. So the court will dismiss the
contends that the second claim should also be dismissed
because plaintiffs' allegations are too conclusory to
satisfy the pleading requirements of Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 569 (2007), and Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). But even after
Twombly and Iqbal, Federal Rule of Civil
Procedure 8 requires only that a complaint (1) give the
defendant fair notice of what the claim is and the grounds on
which it rests; and (2) plausibly suggest that the plaintiff
has a right to relief above a speculative level. Bravo v.
Midland Credit Mgmt., Inc., 812 F.3d 599, 601-02 (7th
complaint satisfies these requirements. They allege that (1)
Sid's signed a collective bargaining agreement that
required it to remit funds to employee trust funds for all
hours spent on work covered by the agreement; (2) Sid's
has a history of violating the agreement by subcontracting
work to North Shore Restoration, a company not covered by the
agreement; and (3) Sid's continued to violate the
agreement by subcontracting work to North Shore Restoration.
Sid's says that plaintiffs must also allege when and
where the subcontracting occurred, but that is the standard
that applies to fraud claims under Rule 9(b). See United
States ex rel. Berkowitz v. Automation Aids, Inc., 896
F.3d 834, 839 (7th Cir. 2018) (“Under Rule 9(b), a
plaintiff alleging fraud or mistake must state with
particularity the circumstances constituting fraud or
mistake. The plaintiff must describe the ‘who, what,
when, where, and how' of the fraud-the first paragraph of
any newspaper story.”) (internal quotations, citations,
and alterations omitted). Plaintiffs' claims are not
governed by Rule 9, so they are not required to plead the
facts with particularity. Because they have alleged enough
facts to plausibly state a claim and give Sid's fair
notice of the nature of that claim, and because this is all
that Rule 8 requires, the court will not dismiss the
also says that plaintiffs violated Rule 11 because they did
not conduct a reasonable inquiry to determine if Sid's
was in fact still subcontracting union work. But Sid's
did not file a separate motion for Rule 11 sanctions, as
required by Rule 11(C)(2), or otherwise show ...