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NEWSPAPER & MAIL DELIVERERS' UNION v. UNITED MAGAZ

November 27, 1992

NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK and VICINITY, ROBERT PALETTA and BARBARA KALISH, as Trustees of the Publishers'-Newspaper and Mail Deliverers' Welfare Fund and the Newspaper and Mail Deliverers'-Publishers Pension Fund, Plaintiffs,
v.
UNITED MAGAZINE COMPANY, YANKEE NEWS CO., INC., RONALD E. SCHERER, MAGAZINE DISTRIBUTORS, INC., MDI DISTRIBUTORS, LIMITED PARTNERSHIP and ROBERT B. COHEN, Defendants.



The opinion of the court was delivered by: ARTHUR D. SPATT

 SPATT, District Judge.

 In a case of apparent first impression, the Court must determine the applicable statute of limitations for the Worker Adjustment and Retraining Act of 1988 ("WARN"). The underlying action was commenced pursuant to WARN and the Employee Retirement Income Security Act ("ERISA") seeking damages as a result of the allegedly improper closing of a place of business in Melville, New York ("Melville Plant").

 The defendants move to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6), 12(b)(7), and 12(c). The plaintiffs oppose these motions.

 BACKGROUND

 Imperial News Co. ("Imperial") and Yankee News Co., Inc ("Yankee"), are wholly-owned subsidiaries of defendant United Magazine Company ("United"). Imperial was a distributor of magazines and paperback books in the New York City area. Prior to January 1, 1991, Imperial was the exclusive wholesaler in this area for the six largest national distributors of periodicals. During October 1990, Hudson News Co. ("Hudson") was informed that it would be taking over for Imperial as wholesaler for four of these six distributors as of January 1, 1991. Defendant Robert B. Cohen ("Cohen") owns and operates Hudson. The defendant Ronald E. Scherer ("Scherer") was the president of National Wholesale Drug Company ("National") and its wholly owned subsidiary NAQ Corporation ("NAQ"). NAQ was incorporated for the sole purpose of purchasing the assets of Imperial.

 Prior to January 1, 1991, Cohen acquired the defendant, Magazine Distributors, Inc. ("MDI Corp.") to assist in handling this new business. Effective January 1, 1991, MDI Corp. became the exclusive wholesaler for the four distributors mentioned above and Imperial's business declined by sixty-five (65) percent.

 In late 1990, after acquiring MDI Corp., Cohen commenced negotiations with four of the defendants: Scherer, the President and principal shareholder of defendant United, the President of Imperial, and the Chairman of defendant Yankee ("the Scherer entities"). These negotiations concerned the sale of Imperial's assets to MDI Corp. The plaintiffs allege that during these negotiations all of the parties mentioned had knowledge of monies allegedly owed to the plaintiffs.

 On January 18, 1991, MDI and the Scherer entities executed a letter of intent concerning the acquisition of Imperial's assets by MDI Corp. which contained a contemplated closing date. However, an agreement was never executed on that contemplated closing date. On March 8, 1991, Scherer signed a Bill of Sale with the heading "effective January 23, 1991" conveying to MDI Corp. title to forty-eight (48) delivery trucks and three automobiles of Imperial for approximately $ 300,000. On June 10, 1991, another Bill of Sale was executed conveying to MDI Corp. all of Imperial's "book and magazine" assets including its inventories of periodicals and office and truck supplies.

 On January 23, 1991, the employees of Imperial's Melville Plant were orally notified that the plant was being closed and they were being terminated, effective January 24, 1991. No written notice was given. The complaint alleges that many employees were offered employment with MDI's Hicksville Warehouse. On January 24, 1991, the above-mentioned forty-eight (48) trucks, along with the equipment and machinery used by Imperial for the distribution of periodicals from the Melville plant, were moved to the Hicksville warehouse, and all of the periodicals formerly distributed by Imperial were delivered from the Hicksville warehouse. Imperial's Melville plant was permanently shut down on January 24, 1991.

 The plaintiff Newspaper and Rail Deliverers' Union ("NMDU"), as the authorized collective bargaining representative for Imperial's Melville warehouse employees, signed a collective bargaining agreement ("Labor Agreement") with Imperial which was to be in effect through May 31, 1993. The Labor Agreement required Imperial to make contributions on behalf of these employees into NMDU's Welfare Fund and Pension Fund. The plaintiffs allege that no such contributions were made after November 30, 1990.

 The Labor Agreement also provided for the posting of a bond to insure the payment to the relevant employees of severance pay and other fringe benefits in the event any magazine publisher terminated, suspended or modified its deliveries through Imperial. Despite a directive contained in an arbitration award confirmed by Judge Weinstein, no bond was posted by Imperial, nor did these employees receive their severance pay or fringe benefits upon the closing of the Melville Plant.

 The Complaint, dated January 31, 1992 and filed on or about February 3, 1992, sets forth three causes of action against the defendants. The first cause of action asserts that the defendants are liable to the plaintiffs for damages under the Worker Adjustment and Retraining Act of 1988 ("WARN") due to Imperial's failure to provide notice of the Melville Plant closing, charging that the individual defendants are liable under an "alter ego" theory. In the second cause of action, the defendants are alleged to be liable to the plaintiffs for the contributions Imperial failed to make to NMDU's Welfare and Pension Funds, again applying the "alter ego" theory to the individual defendants. The plaintiffs contend in their third cause of action that the defendants are liable for the accrued and vested severance pay and other fringe benefits due to Imperial's employees.

 MOTIONS

 The defendants United and Scherer assert the following grounds for dismissal of the complaint: Fed. R. Civ. P. 12(b)(1), lack of subject matter jurisdiction; Fed. R. Civ. P. 12(b)(6), failure to state a claim upon which relief can be granted; and Fed. R. Civ. P. 12(b)(7), failure to join a party under Fed. R. Civ. P. 19. These defendants also move pursuant to Fed. R. Civ. P. 12(c), for judgment on the pleadings.

 The defendants MDI Distributors, Limited Partnership, MDI Inc., and Cohen assert the following grounds for dismissal of the complaint: Fed. R. Civ. P. 12(b)(6), failure to state a claim upon which relief can be granted; and Fed. R. Civ. P. 12(b)(7), failure to join a party under Fed. R. Civ. P. 19.

 At the outset, the Court notes that under Fed. R. Civ. P. 12, the Court may not consider matters submitted outside the pleading unless notice is given to all parties that the motion is being converted to a motion for summary judgment (See Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687, 689 [2d Cir. 1990]; see also Festa v. Local 3 Int'l Brotherhood of Elec. Workers, 905 F.2d 35, 38 [2d Cir. 1990] [this rule is mandatory]). Since, no such notice was given to the parties the Court will not consider papers other than the pleadings (See Maggette v. Dalsheim, 709 F.2d 800, 802 [2d Cir. 1983] ["a court is not obligated to treat a 12(c) motion as a motion for summary judgment"]). Thus, the affidavits of James V. Onorato, submitted on behalf of the MDI defendants, and the defendant Cohen have not been considered by the Court.

 Since, as of the time of making these motions, there have been no Answers filed in this case, issue has not been joined and the pleadings are not "closed". Therefore, the Court will not entertain a motion under Fed. R. Civ. P. 12(c) at this time and will only address the motions made pursuant to Fed. R. Civ. P. 12(b).

 DISCUSSION

 Failure to State a Claim - Fed. R. Civ. P. 12(b)(6)

 On a motion to dismiss for failure to state a claim, "the court should not dismiss the complaint pursuant to Rule 12(b)(6) unless it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'" ( Goldman v. Belden, 754 F.2d 1059, 1065 [2d Cir. 1985] [quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)]; see also Branum v. Clark, 927 F.2d 698 [2d Cir. 1991]). In addition, such a motion is addressed solely to the face of a pleading, and "the court's function . . . is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient" ( Goldman, supra, 754 F.2d at p. 1067).

 In assessing the sufficiency of a pleading on a motion to dismiss, it is well settled that the court must accept the allegations of the complaint as true (see LaBounty v. Adler, 933 F.2d 121, 123 [2d Cir. 1991]; Procter & Gamble Co. v. Big Apple Indus. Bldgs, Inc., 879 F.2d 10, 14 [2d Cir. 1989], cert. denied, 493 U.S. 1022, 107 L. Ed. 2d 743, 110 S. Ct. 723 [1990]), and must construe all reasonable inferences in favor of the plaintiff (See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 [1974]; Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 [2d Cir. 1988], cert. denied, 490 U.S. 1007, 104 L. Ed. 2d 158, 109 S. Ct. 1642 [1989]).

 The Court is also mindful that under the modern rules of pleading, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8[a][2]), and that "all pleadings shall be so construed as to do substantial justice" (Fed. R. Civ. P. ...


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