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Barbera v. R. Rio Trucking

July 26, 2007

GARY LA BARBERA, LAWRENCE KUDLA, THOMAS GESUALDI, PAUL GATTUS, THEODORE KING, CHESTER BROMAN, FRANK FINKEL AND JOSEPH FERRARA, AS TRUSTEES AND FIDUCIARIES OF THE LOCAL 282 WELFARE, PENSION, ANNUITY, JOB TRAINING AND VACATION AND SICK LEAVE TRUST FUNDS, PLAINTIFFS,
v.
R. RIO TRUCKING A/K/A R. RIO TRUCKING, INC., MMK TRUCKING, INC., RIO PAVING AND ROAD SAVERS, INC., DEFENDANTS.



The opinion of the court was delivered by: Townes, United States District Judge

MEMORANDUM and ORDER

On March 28, 2003, plaintiffs, who are the trustees of certain employee benefit plans (the "Funds"), commenced this civil enforcement action pursuant to Sections 502 and 515 of the Employee Retirement Income Security Act, 29 U.S.C. §§1132 and 1145, to recover unpaid and delinquent contributions allegedly owed to the Funds for periods from March 2, 1995, through at least October 31, 2001. Defendants now move for partial summary judgment, alleging that a six-year statute of limitations bars plaintiffs from recovering contributions for any period prior to March 28, 1997.*fn1 For the reasons set forth below, defendants' motions are denied.

FACTS

The facts relevant to defendants' motions are not in dispute. Rio Trucking and MMK are both New York corporations engaged in the business of hauling paving materials. Complaint at ¶¶ 8, 10, 11, 13; Amended Answer at ¶¶ 3, 4, 13. Both of these defendants have signed collective bargaining agreements ("CBAs") with Local 282 of the International Brotherhood of Teamsters. Rio Trucking signed a series of CBAs, effective for the periods from at least July 1, 1993, through at least June 30, 1999. Complaint at ¶ 21; Amended Answer at ¶ 9. MMK, which started business in 2001, was a signatory to the 1999-2002 and the 2002-2005 Nassau/ Suffolk Heavy Construction & Excavating and Asphalt Industry Contracts with Local 282, which were effective from July 1, 1999, through June 30, 2005. Complaint at ¶ 22; Amended Answer at ¶ 10; Defendants R. Rio and MMK's Statement of Material Undisputed Facts Pursuant to Local Rule 56.1, dated Dec. 14, 2004 ("Def. 56.1 Stat."), at ¶¶ 9, 14; Plaintiffs' Statement in Response to the Statement of Defendants Rio Trucking and MMK, dated Jan. 6, 2005 ("Pl. 56.1 Stat."), at ¶¶ 9, 14.*fn2

According to plaintiffs, these CBAs and/or a Trust Agreement which was incorporated by reference therein required employers who signed the CBAs to make certain contributions to the Funds. Complaint at ¶¶ 23-24. These CBAs allegedly also required these employers to submit detailed "remittance reports" -- written reports of the number of hours of "covered employment" performed by their employees. Id. at ¶ 25. In addition, according to the Declaration of Theresa Cody (an employee of Local 282), and under the terms of a Restated Agreement and Declaration of Trust (the "Trust Agreement") attached to that declaration, plaintiffs were authorized to conduct audits of the "pertinent books and records" of the employers and any "affiliated" business entities. Declaration of Theresa Cody, dated Aug. 2, 2005 (the "Cody Declaration"), at ¶¶ 8-9 (citing to the Trust Agreement at pp. 27-28).

Although defendants have not admitted the truth of any of the allegations in the foregoing paragraph, Rio Trucking and MMK both admit that they submitted monthly remittance reports to the Funds for hours worked by their drivers in covered employment. Complaint at ¶¶ 26, 29; Amended Answer at ¶¶ 12,14. Specifically, Rio Trucking concedes that it submitted monthly remittance reports for the months from March 1995 through November 1999, for January and February 2000, and for June and October 2001; MMK admits it filed such reports for the period from April 2001 through at least February 2003. Id. These defendants made contributions corresponding to the number of hours reported. Complaint at ¶¶ 27, 30; Amended Answer at ¶¶ 12,14.

In addition, the parties agree that Rio Trucking has submitted to at least two audits: one in "early 1998" and one in 1999. Plaintiffs allege that the former was a "partial audit" of Rio Trucking for the period from March 2, 1995, through August 31, 1997, and that the only documents provided by Rio Trucking were its owner's personal income tax returns. Declaration of Ken Jones ("Jones Declaration"), at ¶¶ 6-7. The second audit allegedly commenced in the summer of 1999, and involved an examination of Rio Trucking's books and records for the period since September 1, 1997. Id. at ¶¶ 8-9. According to plaintiffs, it was during the course of this second audit, sometime in late August or early September 1999, that plaintiffs' auditor first discovered evidence that Rio Trucking was affiliated with Rio Paving and Road Savers. Id. at ¶¶ 10-12.

Plaintiffs imply that, after learning of this affiliation, they asked Rio Trucking to produce books and records relating to Rio Paving and Road Savers. Complaint at ¶ 62. According to plaintiffs, Rio Trucking not only failed or refused to comply with this request, but also failed or refused to supply its own books and records for the period from July 1, 1999, forward. Id. at ¶ 63. On March 28, 2003, plaintiffs commenced this action, seeking to compel Rio Trucking, Rio Paving and Road Savers to produce various books and records and seeking to recover unpaid and delinquent contributions allegedly owed by the defendants.

It is unnecessary to describe plaintiffs' complaint and the ten causes of action raised therein in great detail. For purposes of this motion, it suffices to note that plaintiffs allege, inter alia, that Rio Trucking used Rio Paving and Road Savers -- both of which were not signatories to CBAs with Local 282 -- to evade its own contractual obligations under the CBAs, and thereby underpaid contributions to the Funds for the period from March 2, 1995, through at least October 31, 2001. Complaint at ¶¶ 99, 103. Plaintiffs seek an order holding Rio Trucking, Rio Paving and Road Savers jointly and severally liable for "delinquent contributions found to be due and owing for the period from March 2, 1995 to October 31, 2001," as well as interest and liquidated damages. Id. at p. 23. Plaintiffs further allege that MMK is a successor to Rio Trucking, id. at ¶ 109, and demand that MMK be held jointly and severally liable for all sums owed to plaintiffs by Rio Trucking. Id. at p. 23.

Defendants now move for partial summary judgment pursuant to Fed. R. Civ. P. 56, principally arguing that the six-year statute of limitations applicable to civil enforcement actions brought pursuant to 29 U.S.C. §1132 bars plaintiffs from recovering contributions for any period prior to March 28, 1997. Plaintiffs respond by arguing that, under the so-called "discovery rule," the claims raised in the complaint did not accrue until 1999, when the second audit discovered Rio Trucking's affiliation with Rio Paving and Road Savers. In their reply, defendants assert that the "discovery rule" does not apply to this case and, even if it did, that plaintiffs had reason to know of defendants breach of the CBAs and/or the Trust Agreement referenced therein in "early 1998," when Rio Trucking provided only its owner's personal tax returns in response to plaintiffs' request for books and records.

DISCUSSION

Summary judgment is appropriate only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of showing that there is no genuine issue of fact and that it is entitled to judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). These principles apply whether the movant is the plaintiff and is seeking summary judgment upon claims raised in the complaint, or is a defendant seeking summary judgment on an affirmative defense such as the statute of limitations. See Buttry v. General Signal Corp., 68 F.3d 1488, 1492 (2d Cir. 1995).

In this case, defendants move for partial summary judgment, alleging that the statute of limitations bars plaintiffs from recovering contributions for the period prior to March 28, 1997. As defendants correctly note, and as plaintiffs concede, ERISA does not prescribe a limitations period for civil enforcement actions brought pursuant to 29 U.S.C. §1132. See Miles v. N.Y. State Teamsters Conference Pension & Retirement Fund Employee Pension Benefit Plan, 698 F.2d 593, 598 (2d Cir. 1983). The controlling limitation period is, therefore, borrowed from "the most nearly analogous state limitations statute." Id. (citing Board of Regents v. Tomanio, 446 U.S. 478, 483-84 (1980)). Since employee benefit plans are contracts, and New York law prescribes a six-year period of limitations for contract actions, see N.Y. C.P.L.R. §213(2), plaintiffs had six years from the date on which their claims accrued in which to bring this action. See, e.g., id.; In re J.P. Morgan Chase Cash Balance Litig., 460 F. Supp. 2d 479, 483 (S.D.N.Y. 2006).

The parties agree that a six-year limitation period applies to this action. Defendants' Memorandum of Law in Support of its Request for Summary Judgment at 7; Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Pl. Memo") at 4. However, the parties disagree as to when an ERISA claim brought pursuant to 29 U.S.C. ยง1132 accrues -- that is, when the six-year statute of limitations starts to run. Principally relying on Third Circuit cases, defendants urge this Court to apply New York law, which dictates that contractual claims accrue when the breach of contract occurs, not when the breach is discovered. Reply Memorandum of Law on Behalf of Defendants R. Rio Trucking and MMK Trucking, Inc., ("Reply Memo") at 3 (citing Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402-04, 599 N.Y.S.2d 501, 502-04 (1993)). Plaintiffs, however, argue that federal law, ...


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