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Trustees of Laborers Union Local No. 1298 of Nassau & Suffolk Counties Benefit Funds v. A To E, Inc.

United States District Court, E.D. New York

December 9, 2014

TRUSTEES OF LABORERS UNION LOCAL NO. 1298 OF NASSAU AND SUFFOLK COUNTIES BENEFIT FUNDS, Plaintiff,
v.
A TO E, INC., Defendant

Page 436

For the Plaintiff: Danielle Marlene Carney, Esq., Zachary Eagle, Esq., Of Counsel, Barnes, Iaccarino & Shepherd LLP, Hempstead, NY.

For the Defendant: Charles R. Cuneo, Esq., Garden City, NY.

Page 437

ORDER

ARTHUR D. SPATT, United States District Judge.

On August 26, 2013, the Plaintiff Trustees of Laborers Union Local No. 1298 of Nassau and Suffolk Counties Benefit Funds (the " Plaintiff" ) commenced this action against the Defendant A to E, Inc. (the " Defendant" ) under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185 and Sections 502(a)(3) and 515 of the Employee Retirement Income Security Act, as amended, 29 U.S.C. § § 1132(a)(3) and 1145 (" ERISA" ), to recover monetary damages, plus injunctive and equitable relief. The Plaintiff asserts, among other claims, breach of a collective bargaining agreement (" CBA" ) entered into between the union and the Defendant and ERISA violations.

On November 23, 2013 the Defendant served its answer.

On August 11, 2014, the Plaintiff served the Defendant with Interrogatories and Document requests, but has yet to receive a response.

On October 30, 2014, the Plaintiff moved pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 15(a) for leave to file an amended complaint. In this regard, the Plaintiff seeks to add two additional defendants, namely Bryan Novelli d/b/a Thomas Novelli & Sons a/k/a the Novelli Group and Thomas Novelli Contracting Corp (the " Novelli entities" ). According to the Plaintiff, although the Novelli entities are not signatories to the CBA, they may nonetheless be held liable for the Defendant's liabilities under an alter ego or single employer theory.

The Federal Rules of Civil Procedure allow a party to amend its pleading once as a matter of course within 21 days of serving it. Fed.R.Civ.P. 15(a)(1). After 21 days have elapsed, the party may amend its pleading " only with the opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a)(2). " Although Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend 'shall be freely given when justice so requires,' it is within the sound discretion of the district court to grant or deny leave to amend." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). However, leave should not be granted where the amendment is unduly delayed or brought

Page 438

in bad faith, or where it would prejudice the opposing party, or where it would be futile. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

Here, the Defendant essentially argues that leave to amend should not be granted because the claims as asserted against the Novelli entities would be futile. " A proposed amendment to a pleading is deemed to be futile if the amended pleading fails to state a claim" pursuant to Rule 12(b)(6). Kirk v. Heppt, 423 F.Supp.2d 147, 149 (S.D.N.Y. 2006)(citing Oneida Indian Nation of New York v. City of Sherrill, 337 F.3d 139, 168 (2d Cir. 2003).

" To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to " state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(quoting Bell A. Corp. v. Twombly,550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In considering a motion to dismiss, the Court is required to construe the factual allegations contained in the Complaint as true and draw all reasonable inferences in favor of the plaintiff. See Ruotolo v. City of New York,514 F.3d 184, 188 (2d Cir. 2008)(" We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and ...


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