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Operating Engineers Local 101 Pension Fund v. AL Muehlberger Concrete Construction, Inc.

United States District Court, Tenth Circuit

September 26, 2013

OPERATING ENGINEERS LOCAL 101 PENSION FUND, et al., Plaintiffs,
v.
AL MUEHLBERGER CONCRETE CONSTRUCTION, INC., et al., Defendants.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE

This is a case alleging claims under the Employee Retirement Income Security Act of 1974 (“ERISA”) and the Labor Management Relations Act (“LMRA”) against Defendants Al Muehlberger Concrete Co. LLC (“the LLC”); Al Muehlberger Concrete Construction, Inc., a Kansas entity; Al Muehlberger Concrete Construction, Inc., a Missouri entity; Alphonse Muehlberger; and Daniel Muehlberger. Before the Court are Defendant Al Muehlberger Concrete Construction, Inc.’s Motion to Dismiss for Failure to State a Claim, or in the Alternative, Motion for Summary Judgment (Doc. 22); Defendant Alphonse W. Muehlberger’s Motion to Dismiss for Failure to State a Claim, or in the Alternative, Motion for Summary Judgment (Doc. 29), and Defendants Al Muehlberger Concrete Construction, Inc. and Alphonse W. Muehlberger’s Motion to Dismiss Plaintiff’s Amended Complaint for Failure to State a Claim (Doc. 46). These motions are fully briefed and the Court is prepared to rule. As discussed more fully below, the Court finds that the two motions to dismiss the Original Complaint are moot, and denies Defendants’ motion to dismiss the Amended Complaint.

I. Matters Outside the Pleadings

The Amended Complaint was filed after the two motions to dismiss the Original Complaint; the Amended Complaint is now the operative pleading in this case. Plaintiffs contend that the original motions to dismiss are now moot in light of the Amended Complaint, while Defendants ask that their arguments and authorities on the motions to dismiss the Original Complaint be incorporated by reference into their later motion. The Court declines to cross-reference all of the briefing on the earlier motions. The operative pleading now is the Amended Complaint and the Court will focus on whether that document passes muster under Fed.R.Civ.P. 12(b)(6). While the Court will look to the previously-filed motions with respect to specific cross-references and exhibits by the parties on the motion to dismiss the Amended Complaint, the motions to dismiss the Original Complaint are otherwise moot.

While Defendants in their recently-filed motion generally identify the same deficiencies as addressed in the earlier motions, the new motion differs in an important respect: it does not include an alternative motion for summary judgment. Defendants insist throughout their briefs on this new motion that the factual allegations in the Amended Complaint are insufficient, spending considerable time discussing the standard applicable to motions to dismiss under Fed.R.Civ.P. 12(b)(6), with no mention of the summary judgment standard.[1] In responding to the earlier motions, Plaintiffs filed a Rule 56(d) affidavit, contending that they are without the discovery essential to justify opposition to those motions to the extent they relied on matters outside the pleadings. Defendants never replied to these responses, and the Court therefore deems them moot. The Court considers the motion to dismiss the Amended Complaint under Rule 12(b)(6) and not under Rule 56.

If the Court looks to matters outside the complaint in ruling on a motion to dismiss, it generally must convert the motion to a Rule 56 motion for summary judgment.[2] However, the Court may consider documents which are referred to in the complaint.[3] Here, the collective bargaining agreement is central to the claims asserted in the Amended Complaint, and is repeatedly referenced therein, so it is appropriate for the Court to consider the agreement to the extent it has been made part of the record. Plaintiffs present two exhibits, attached to their original response briefs, as evidence of the collective bargaining agreements that are central to their claims in this case.[4] It is appropriate for the Court to consider these without converting this motion to dismiss into a motion for summary judgment.[5]

The Court may also take judicial notice of certain facts without converting a motion to dismiss into one for summary judgment.[6] Under Fed.R.Evid. 201, the Court may take judicial notice at any time of the proceeding of a fact “that is not subject to reasonable dispute because it[] an be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”[7] Judicially noticed documents “may only be considered to show their contents, not to prove the truth of matters asserted therein.”[8] Judicial notice is mandatory when requested by a party and the Court is provided the necessary information.[9] The decision to take judicial notice of a fact is within the Court’s discretion.[10]

Defendants ask the Court to take judicial notice of screen shots of certain incorporation records on the Kansas and Missouri secretaries of state websites. Public documents filed with the Secretary of State “generally satisfy the judicial notice standard and district courts routinely take judicial notice of such documents in resolving motions to dismiss.”[11] Plaintiffs object, arguing that these documents are not reliable. The Court agrees. While certified copies of public records would be acceptable documents for purposes of judicial notice, [12] these web printouts are not certified copies of the official documents. In fact, each of the Kansas Secretary of State documents contain a conspicuous disclaimer that advises it “is not an official filing with the Secretary of State’s office and should not be relied on as such.” While the Missouri document appears to be a copy of an actual document, it does not appear to be a certified copy. Counsel for Defendants provide no other authenticating information for these documents. The Court therefore declines to exercise its discretion and take judicial notice of these documents. The Court will confine its analysis to the sufficiency of the Amended Complaint, along with the documents explicitly incorporated by reference into the Amended Complaint.

II. Standard under Fed.R.Civ.P. 12(b)(6)

Under Fed.R.Civ.P. 8(a)(2), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to give the defendant adequate notice of what the plaintiff’s claim is and the grounds of that claim.[13] In so doing, a complaint must present factual allegations, assumed to be true, that “raise a right to relief above the speculative level” and must contain “enough facts to state a claim to relief that is plausible on its face.”[14] The plausibility standard does not require a showing of probability that “a defendant has acted unlawfully, ”[15] but it requires more than “a sheer possibility.”[16]

The plausibility standard enunciated in Bell Atlantic v. Twombly, [17] seeks a middle ground between heightened fact pleading and “allowing complaints that are no more than ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action, ’ which the Court stated ‘will not do.’”[18] Twombly does not change other principles, such as that a court must accept all factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.[19]

The Supreme Court has explained the analysis as a two-step process. For purposes of a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but] we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”[20] Thus, the Court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.[21] Second, the Court must determine whether the factual allegations, when assumed true, “plausibly give rise to an entitlement to relief.”[22] “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.”[23]

III. The Amended Complaint

Plaintiffs consist of several pension funds that qualify as “employee benefit plans” under ERISA, the co-Chairman of the pension funds who is also a plan fiduciary, and a union that is a “labor organization representing employees in an industry affecting commerce, ” as defined by the LMRA. Plaintiffs generally allege that all of the named Defendants are liable under ERISA and the LMRA because they operated under a written collective bargaining agreement. The motions to dismiss concern whether the proper parties are named as Defendants in this matter. The Amended Complaint alleges alternative claims against two corporate entities: Al Muehlberger Concrete Construction, Inc., an entity registered in Kansas (“AMCC Kansas”), and Al Muehlberger Concrete Construction, Inc., an entity registered in Missouri (“AMCC Missouri”). It alleges that the LLC is liable under ...


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