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Marshall v. Anderson Excavating and Wrecking Co.

United States District Court, D. Nebraska

November 10, 2015

ROD MARSHALL, TRUSTEE, et al., Plaintiffs,
v.
ANDERSON EXCAVATING AND WRECKING CO., a/k/a ANDERSON EXCAVATING CO., Defendant.

MEMORANDUM AND ORDER

JOHN M. GERRARD UNITED STATES DISTRICT JUDGE.

This matter is before the Court on defendant Anderson Excavating and Wrecking Co.'s motion for judgment on the pleadings and/or alternative motion to dismiss (filing 49). For the reasons discussed below, the Court will deny the defendant's motion, but will enter an order to show cause as to why this action should not be stayed pending arbitration.

BACKGROUND

The plaintiffs are the International Union of Operating Engineers, Local 571 ("the Union"); and the trustees ("the Trustees") of both the Contractors, Laborers, Teamsters and Engineers Health and Welfare Plan ("Welfare Plan") and the Contractors, Laborers, Teamsters and Engineers Pension Plan ("Pension Plan"). Filing 1 at ¶¶ 2-7. The two trusts were established by various construction labor unions and contractors to administer health benefits and a pension program for employees represented by the unions. Filing 1 at ¶ 4-5. Anderson Excavating is a Nebraska corporation. Filing 1 at ¶ 7.

According to the plaintiffs, in 2004, the Union and Anderson Excavating entered into a collective bargaining agreement (CBA). See, filing 1 at ¶ 8; filing 1-1 at 1. The plaintiffs allege that this CBA binds the parties to two separate trust agreements, which obligate Anderson Excavating to contribute to the Welfare Plan and Pension Plan, filing 1 at ¶ 8; submit to audits, filing 1 at ¶ 9; and deposit collateral for its payments to the Welfare Plan and Pension Plan, filing 1 at ¶ 13, 14. The plaintiffs allege that although Anderson Excavating has made contributions to the Welfare Plan and Pension Plan, it has refused to allow the Trustees to audit its records, filing 1 at ¶ 9, and has not deposited collateral, filing 1 at ¶ 15.

The plaintiffs have sued Anderson Excavating under 29 U.S.C. § 185(a), 29 U.S.C. § 1132, and 29 U.S.C. § 1145 for specific performance of the CBA and the two trust agreements. Filing 1 at ¶ 1. The plaintiffs ask the Court to allow them to perform an audit of the defendant's records, to require the defendant to pay any amount still owing into the Welfare Plan and Pension Plan, to deposit collateral as security for the Welfare Plan and Pension Plan, and to pay the plaintiffs' costs and attorney fees. Filing 1 at ¶¶ 11, 16. The defendant counters that under the terms of the CBA, the plaintiffs were required to submit their dispute to arbitration, rather than filing suit. Filing 49 at ¶ 9. Thus, according to the defendant, this Court has no subject-matter jurisdiction over the dispute, and should either issue a judgment on the pleadings or dismiss the suit. Filing 49 at ¶ 1.

STANDARD OF REVIEW

As a general rule, a Fed.R.Civ.P. 12(c) motion for judgment on the pleadings is reviewed under the same standard as a Fed. R. Civ. P. 12(b)(6) motion to dismiss. Ginsburg v. InBev NV/SA, 623 F.3d 1229, 1233 n.3 (8th Cir. 2010). A Rule 12(c) motion requires the Court to view all facts pleaded by the nonmoving party as true and grant all reasonable inferences in favor of that party. Poehl v. Countryside Home Loans, Inc., 528 F.3d 1093, 1096 (8th Cir. 2008). Judgment on the pleadings is appropriate only when there is no dispute as to any material facts and the moving party is entitled to judgment as a matter of law. Ashley Cty. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009); Poehl, 528 F.3d at 1096.

A complaint must set forth a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This standard does not require detailed factual allegations, but it demands more than an unadorned accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint need not contain detailed factual allegations, but must provide more than labels and conclusions; and a formulaic recitation of the elements of a cause of action will not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). For the purposes of a motion to dismiss a court must take all of the factual allegations in the complaint as true, but is not bound to accept as true a legal conclusion couched as a factual allegation. Id.

And to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must also contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 678. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief. Id. at 679.

Determining whether a complaint states a plausible claim for relief will require the reviewing court to draw on its judicial experience and common sense. Id. The facts alleged must raise a reasonable expectation that discovery will reveal evidence to substantiate the necessary elements of the plaintiff’s claim. See Twombly, 550 U.S. at 545. The court must assume the truth of the plaintiff’s factual allegations, and a well-pleaded complaint may proceed, even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely. Id. at 556.

ANALYSIS

The defendant argues that the Court has no subject-matter jurisdiction over this dispute because the CBA contains a provision requiring the plaintiffs to submit their dispute to arbitration rather than filing suit.[1] Filing 49 at ¶¶ 8, 9. The plaintiffs oppose the defendant's motion primarily on two grounds.

First, the plaintiffs oppose the defendant's motion on the ground that it fails to comply with NECivR 7.1(a)(1)(A), which provides, "A motion raising a substantial issue of law must be supported by a brief filed and served together with the motion. The brief must be separate from, and not attached to or incorporated in, the motion or index of evidence." The defendant has failed to file such a brief in this case. The Court does not endorse the defendant's failure to do so. However, a litigant generally may raise a court's lack of subject-matter jurisdiction at any time in the same civil action, Kontrick v. Ryan, 540 U.S. 443, 444 (2004), and the Court would be obliged to consider it sua sponte even if the parties had failed to raise the issue ...


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