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Annuity, Pension, Welfare, Training and Labor Management Cooperation Trust Funds of International Union of Operating Engineers, AFL-CIO v. Coastal Environmental Group Inc.

United States District Court, E.D. New York

September 5, 2019

THE ANNUITY, PENSION, WELFARE, TRAINING AND LABOR MANAGEMENT COOPERATION TRUST FUNDS OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 14-14B, AFL-CIO, BY THEIR TRUSTEES EDWIN L. CHRISTIAN, CHRISTOPHER T. CONFREY, JOHN CRONIN, DON DeNARDO, KENNETH KLEMENS, JR., JOHN F. O'HARE, DENISE M. RICHARDSON and ERNESTO TERSIGNI, and INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 14-14B, AFL-CIO, BY ITS BUSINESS MANAGER EDWIN L. CHRISTIAN, Plaintiffs,
v.
COASTAL ENVIRONMENTAL GROUP INC., Defendant.

          REPORT AND RECOMMENDATION

          Steven L. Tiscione United States Magistrate Judge

         INTRODUCTORY STATEMENT

         The Annuity, Pension, Welfare, Training and Labor Management Cooperation Trust Funds of the International Union of Operating Engineers, Local 14-14B, AFL-CIO (“Local 14 Trust Funds”), represented by their trustees Edwin L. Christian, Christopher T. Confrey, John Cronin, Don DeNardo, Kenneth Klemens, Jr., John F. O'Hare, Denise M. Richardson and Ernesto Tersigni (the “Trustees”), together with the International Union of Operating Engineers Local 14-14B (“Local 14”) represented by its business manager Edwin L. Christian (collectively, “Plaintiffs”), commenced this action on October 16, 2018, against Coastal Environmental Group, Inc. (“Coastal Environmental” or “Defendant”) pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., and the Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 141 et seq. See generally Complaint (“Compl.”), Dkt. No. 1. Plaintiffs allege that Defendant failed to make required annuity, voluntary annuity, pension, welfare, and training benefit contribution payments owed to Plaintiffs under the terms of a collective bargaining agreement in violation of Section 515 of ERISA, 29 U.S.C. § 1145, and further allege that Defendant failed to make additional required fringe benefit contribution payments owed to Plaintiffs under the terms of the same collective bargaining agreement in violation of Section 301 of the LMRA, 29 U.S.C. § 185 et seq. Compl. ¶¶ 1, 27-28, 30; see also Memorandum of Law in Support of Plaintiffs' Motion for Default Judgment Against Defendant Coastal Environmental Group (“Memorandum in Support of Default Judgment” or “Memo. Supp. Mot. Def. J.”), Dkt. No. 13, at 6-8. The Honorable Ann M. Donnelly has referred Plaintiffs' motion to this Court for a report and recommendation.

         Based on a review of the well-pleaded allegations and evidence presented in Plaintiffs' filings, this Court respectfully recommends that Plaintiffs' motion for default judgment be granted in part and denied in part as explained below.

         BACKGROUND

         A. Factual Background

         The following undisputed facts are drawn from the Complaint, Dkt. No. 1, as well as additional documents incorporated by reference thereto. These additional documents include the collective bargaining agreement between Plaintiffs and Defendant (“CBA”), annexed to the affidavit of Plaintiffs' counsel James M. Steinberg (“Steinberg Aff.”), Dkt. No. 9, as Exhibit B, Dkt. No. 9-2; the trust agreements establishing the Local 14 Trust funds (“Trust Agreements”), Steinberg Aff., Exhs. C-G, Dkt. Nos. 9-3, 9-4, 9-5, 9-6, 9-7; and the audit report of Defendant's books and records identifying the contributions claimed by Plaintiffs to be due (“Audit Report”), Steinberg Aff., Exh. I, Dkt. No. 9-9.

         Plaintiff Local 14 constitutes a labor organization pursuant to Section 2 of the LMRA, 29 U.S.C. § 152, of which Edwin L. Christian serves as Business Manager and Chief Executive Officer. Compl. ¶¶ 11-12. Plaintiffs Local 14 Trust Funds constitute joint trustee funds created by trust indentures in accordance with Section 302 of the LMRA, 29 U.S.C. § 186. Id. ¶ 4. The Local 14 Welfare and Training Funds constitute “employee welfare benefit plans” pursuant to Section 3(1) of ERISA, 29 U.S.C. § 1002(1), while the Local 14 Annuity and Pension Funds constitute “employee pension benefit plans” pursuant to Section 3(2) of ERISA, 29 U.S.C. § 1002(2). Id. ¶¶ 7-8. Additionally, each of the Local 14 Annuity, Pension, Welfare and Training Funds (collectively, the “ERISA Funds”) constitutes a “multiemployer/employee benefit plan” pursuant to Sections 3(3) and 3(37) of ERISA, 29 U.S.C. §§ 1002(3) and (37). Id. ¶ 9. By contrast, the Local 14 Labor Management Cooperation Trust Fund (“LMCT Fund”) is a non-ERISA entity and constitutes a “labor management cooperation trust fund” pursuant to the Labor-Management Cooperation Act of 1978, 29 U.S.C. 186(c)(9) and under Section 501(c)(5) of the Internal Revenue Code. Id. ¶ 10. Edwin L. Christian, Christopher T. Confrey, John Cronin, Don DeNardo, Kenneth Klemens, Jr., John F. O'Hare, Denise M. Richardson and Ernesto Tersigni (collectively, “the Trustees”) all serve as trustees of each of the Local 14 Trust Funds. Id. ¶¶ 5-6. With respect to the ERISA Funds, the Trustees constitute “fiduciaries” pursuant to Section 3(21) of ERISA, 29 U.S.C. § 1002(21). Id. ¶ 5. With respect to the LCMT Fund, the Trustees constitute “fiduciaries” pursuant to Section 501 of the Labor-Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. § 501, as well as the common law of trusts. Id. ¶ 6.

         Plaintiffs allege upon information and belief that Defendant constitutes an employer under Section 3(5) of ERISA, 29 U.S.C. § 1002(5), and Section 301 of the LMRA, 29 U.S.C. § 185, and that Defendant was and remains a New York corporation maintaining a principal location of business in East Patchogue, New York.[1] Id. ¶¶ 13, 16. At all times relevant to the present action, Defendant was party to and agreed to be bound by the CBA between Local 14 and the General Contractors Association of New York, Inc. (“GCA”), effective from July 1, 2014 through June 30, 2018, by virtue of Defendant's membership with the GCA. Compl. ¶ 17; see also CBA at 1, art. IV. Defendant was obligated under the terms of the CBA to make contributions to both the aforementioned ERISA Funds and a deferred-income trust called the “Annuity Voluntary Fund”[2](collectively, the “ERISA Contributions”) at specified rates corresponding to the hours of work performed by employees covered under the CBA. Compl. ¶ 18; CBA art. XI-A §§ 1-6; see also Monterroso Affidavit (“Monterroso Aff.”) ¶ 7, Dkt. No. 11. Defendant was also required under the terms of the CBA to remit additional payments to Plaintiff Local 14 in the form of general dues assessments (“Union Dues”) and mandatory union defense fund contributions (“Defense Fund Contributions”), along with a mandatory contribution to the LMCT Fund later adopted as of February 10, 2017 (“LMCTF Dues”; collectively with Union Dues and Defense Fund Contributions, the “non-ERISA Contributions”). Compl. ¶¶ 18, 22, 24; CBA art. XI-A §§ 7-8; see also Steinberg Aff., Exh. H (“Notification of Labor Management Cooperation Trust Fund Allocation, ” or “LMCTF Allocation Notice”), Dkt. No. 9-8; Monterroso Aff. ¶ 7. In keeping with its obligations under the CBA, Defendant consented to an audit of its records conducted by Plaintiffs' auditor for the period of July 1, 2014, to February 28, 2018. Compl. ¶ 21; see also CBA art. XI-B § 11; Steinberg Aff., Exh. C (the “Annuity Fund Trust Agreement”) art. 4 § 12; Steinberg Aff., Exh. D (the “Pension Fund Trust Agreement”) art. VII § 3; Steinberg Aff., Exh. E (the “Welfare Fund Trust Agreement”) art. VII § 3; Steinberg Aff., Exh. F (the “Training Fund Trust Agreement”) art. 4 § 12. The report from this audit concluded that Defendant failed to pay a portion of the dues it owed in ERISA and non-ERISA Contributions during a delinquency period spanning from November 1, 2014, to October 31, 2016. Compl. ¶ 22; see also Audit Report at 2. As of yet, Defendant has failed to pay any of the outstanding dues identified by the audit. Compl. ¶¶ 23-25.

         B. Procedural History

         Plaintiffs filed this action against Defendant in a timely fashion on October 16, 2018, see Compl., and then filed proof of service of the Summons and Complaint upon Defendant on November 5, 2018, see Summons Returned Executed, Dkt. No. 5. When Defendant failed to appear or otherwise defend in response to Plaintiffs' action, Plaintiff requested the entry of a Certificate of Default against Defendant, Dkt. No. 6, which was duly issued by the Clerk of Court on December 3, 2018, Dkt. No. 7. That same day, Plaintiffs moved for default judgment against Defendant and certified service of Plaintiffs' request for certificate of default, Clerk's entry of default, notice of Plaintiffs' motion for default judgment, supporting affidavits and exhibits, and supporting memorandum of law upon Defendant at Defendant's address on file. See Dkt. Nos. 8- 14. The District Court then referred Plaintiffs' motion for default judgment to this Court for a report and recommendation. Order dated December 4, 2018. To date, Defendant has responded neither to the Complaint nor to Plaintiffs' motion.

         DISCUSSION

         A. Liability Under Default Judgment

         The Federal Rules of Civil Procedure establish the procedure by which a default judgment may be obtained. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993) (explaining the process for entry of default and entry of default judgment prescribed by Fed.R.Civ.P. 55). First, if “a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, ” then “the clerk must enter the party's default.” Fed.R.Civ.P. 55(a). Second, provided that the movant's claim is not “for a sum certain or a sum that can be made certain by computation, ” the movant then “must apply to the court for a default judgment.” Fed.R.Civ.P. 55(b). Finally, if the defaulting party still fails to appear or move to set aside the default under Rule 55(c), the Court may then enter a default judgment in favor of the movant. Fed.R.Civ.P. 55(b)(2).

         A party in default is deemed to concede all well-pleaded factual allegations in the complaint pertaining to liability. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). However, “[e]ven after default it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.” In re Wildlife Ctr., Inc., 102 B.R. 321, 325 (Bankr. E.D.N.Y. 1989); see also Rolls-Royce PLC v. Rolls-Royce USA, 688 F.Supp.2d 150, 153 (E.D.N.Y. 2010) (“[I]t remains the court's responsibility to ensure that the factual allegations, accepted as true, provide a proper basis for liability and relief.”). A court considering a motion for default judgment thus retains the discretion to determine whether the entry of default judgment is appropriate in the given case. Enron, 10 F.3d at 95; see also Taylor v. 312 Grand St. LLC, 15 Civ. 5410 (BMC), 2016 U.S. Dist. LEXIS 36623, at *3 (E.D.N.Y. Mar. 22, 2016) (“[J]ust because a party is in default, the plaintiff is not entitled to a default judgment as a matter of right.” (citations omitted)). A plaintiff moving for default judgment against a defendant in default thus retains the burden to establish the defendant's liability on any asserted cause of action on the basis of the unchallenged factual allegations and reasonable inferences drawn from the evidence in that case. City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011); see also Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981) (“[A] district court has discretion under Rule 55(b)(2) once a default is determined to require proof of necessary facts and need not agree that the alleged facts constitute a valid cause of action . . . .”).

         Additionally, a defendant's default does not constitute admission of the plaintiff's allegations relating to the amount of damages. Fed.R.Civ.P. 8(b)(6); see Cement & Concrete Workers Dist. Council Welfare Fund v. Metrofoundation Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012). Thus, upon establishing the liability of a defaulting defendant, the Court must conduct its own analysis to “ascertain the amount of damages with reasonable certainty” by first “determining the proper rule for calculating damages on [the given] claim” and then “assessing plaintiff's evidence supporting the damages to be determined under this rule.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). The plaintiff in such a case bears the burden to demonstrate “that the compensation sought relate[s] to the damages that naturally flow from the injuries pleaded.” Greyhound Exhibitgroup, 973 F.2d at 159.

         B. Whether Defendant Defaulted.

         The procedural history of this action makes clear that Defendant is appropriately deemed to be in default. Despite being properly served by Plaintiffs on October 30, 2018, Defendant failed to answer or in any way respond to Plaintiffs' complaint as of November 29, 2018. See Summons Returned Executed, Dkt. No. 5; Request for Certificate of Default, Dkt. No. 6; Affirmation in Support of Request for Certificate of Default ¶¶ 2-5, Dkt. No. 6-1. Upon Defendant's failure to respond, Plaintiffs filed a motion for entry of default against Defendant on November 29, 2018, pursuant to which the Clerk of Court entered a certificate of default against Defendant on December 3, 2018. See Request for Certificate of Default, Dkt. 6; Clerk's Entry of Default, Dkt. No. 7. Thus, in keeping with the standard provided for by Fed.R.Civ.P. 55(a), Defendant is properly considered to have admitted to all factual allegations in the Complaint and is subject to this Court's assessment of its liability thereby.

         C. Whether This Court Has Jurisdiction.

         This Court finds that it has federal question subject matter jurisdiction over this action given that all claims herein have been brought pursuant to ERISA, 29 U.S.C. § 1001 et seq., and the LMRA, 29 U.S.C. § 141 et seq. See Compl. ¶ 2; 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the . . . laws . . . of the United States.”); Okla. Tax Comm'n v. Graham, 489 U.S. 838, 840-841 (1989) (“[W]hether a case is one arising under federal law, in the sense of the jurisdictional statute, must be determined from what necessarily appears in the plaintiff's statement of his own claim . . . .” (brackets, ellipses, internal citations, and quotation marks omitted)).[3]

         This Court also finds that it has personal jurisdiction over Defendant given that Defendant is a New York corporation and maintains a principal place of business at 264 Sills Road, East Patchogue, New York. See Compl. ¶ 13; Metro. Life Ins. v. Robertson-Ceco Corp., 84 F.3d 560, 567-68 (2d Cir. 1996) (“[A] court's general jurisdiction . . . is based on the defendant's general business contacts with the forum . . . and permits a court to exercise its power in a case where the subject matter of the suit is unrelated to those contacts.” (citing Helicopteros Nacionales de . . . .”); 29 USC § 1002(11) (“The term ‘commerce' means trade, traffic, commerce, transportation, or communication between any State and any place outside thereof.”); 470 Stratford Holding Co. v. Local 32B-32J, Serv. Emps. Int'l Union, 805 F.Supp. 118, 121 (E.D.N.Y. 1992) (“Whether [the LMRA] jurisdictional requisite is met is a question of law. The focus of [which] should not be . . . whether any employer or any labor organization engages in activity that affects interstate commerce, but instead, whether the flow of commerce could be affected or impeded as a result of a labor dispute . . . .”). In the present case, however, neither Plaintiffs' complaint nor any of Plaintiffs' supporting documents contain a clear allegation that any party to this action is located out of state, engages in interstate or foreign commerce, or operates in an industry that has substantial effect on interstate or foreign commerce. See, e.g., Compl. ¶ 2 (alleging the appropriateness of subject matter jurisdiction under 29 U.S.C. § 185(c), 1132, and 1145 without further explanation), ¶¶ 13-15 (alleging without elaboration that Defendant “was and still is a foreign corporation” after having stated in the previous sentence that Defendant is “a New York corporation with its principal place of business located [in] . . . New York.”). Colombia, S.A. v. Hall, 466 U.S. 408, 414-16 & nn. 8-9 (1984))); Daimler AG v. Bauman, 571 U.S. 117, 122 (2014) (holding that a corporation has minimum contacts to support the exercise of general personal jurisdiction “when [its] affiliations with the State in which suit is brought are so constant and pervasive ‘as to render [it] essentially at home in the forum State'” (quoting Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U.S. 915, 919 (2011)); BNSF Ry. Co. v. Tyrell, 137 S.Ct. 1549, 1558 (2017) (“The ‘paradigm' forums in which a corporate defendant is ‘at home' are [its] place of incorporation and its principal place of business.”).

         D. Whether ERISA and the LMRA apply to the Parties

         As noted above, Plaintiffs allege that the ERISA Funds are “multiemployer/employee benefit plans” of which the Trustees are “fiduciaries” under Section 3 of ERISA, 29 U.S.C. § 1002, and that Defendant is an employer under Section 3(5) of ERISA, 29 U.S.C. § 1002(5) and Section 301 of the LMRA, 29 U.S.C. § 185. Compl. ¶¶ 5, 9, 16. Plaintiffs also allege that Local 14 is a “labor organization, ” the LMCT Fund is a “labor management cooperation trust fund, ” and the Local 14 Trust Funds are joint trustee funds established pursuant to Sections 2 and 302 of the LMRA, 29 U.S.C. §§ 152, 186, and further claim that the Trustees are “fiduciaries” of the LMCT Fund pursuant to Section 501 of the LMRDA, 29 U.S.C. § 501. Id. ¶¶ 4-6, 10-12, 16. Since these claims entail determinations of legal status rather than mere stipulations of fact, this Court will first review and confirm these conclusions before proceeding to assess the merits of Defendant's liability thereupon. See, e.g., Gesualdi v. Ava Shypula Testing & Inspection, Inc., No. 13 Civ. 1873 (DRH) (GRB), 2014 U.S. Dist. LEXIS 50752, at *7-11 (E.D.N.Y. Feb. 28, 2014) (conducting an analysis of defaulting defendant's liability under ERISA on the basis of plaintiff's allegations of fact rather than merely accepting plaintiff's allegation of defendant's liability as fact); Durso v. Modern Food Ctr., Inc., No. 17 Civ. 7324 (LAK) (GWG), 2018 U.S. Dist. LEXIS 101607, 2018 WL 3019112, at *8-10 (S.D.N.Y. June 18, 2018) (same); see also Varity Corp. v. Howe, 516 U.S. 489, 498 (1996) (characterizing the determination of petitioner's status as an “employer” or “fiduciary” under ERISA as a “legal conclusion” as distinguished from the “factual findings” concerning petitioner's conduct upon which that determination was based).

         ERISA, a federal legislative program that directs the administration of employee benefits for businesses engaged in interstate commerce, is “designed to provide comprehensive and uniform regulation of employee benefit plans by imposing requirements for reporting, disclosure and fiduciary responsibility once an employer chooses to provide benefits . . . .” HMI Mech. Sys., Inc. v. McGowan, 266 F.3d 142, 148 (2d Cir. 2001) (citation omitted); see generally 29 U.S.C. § 1001 et seq. Section 515 of ERISA provides that “[e]very employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement . . . [to] make such contributions in accordance with the terms and conditions of such plan or such agreement.” 29 U.S.C. § 1145. ERISA also provides that “[p]lan fiduciaries may bring civil actions to enforce the provisions of such plans and/or collective bargaining agreements.” Annuity, Pension, Welfare, Training and Labor Mgmt. Cooperation Tr. Fund of the Int'l Union of Operating Eng'rs Local 14-4B v. BKS-NY, LLC, No. 18 Civ. 0256 (LDH) (VMS), 2018 U.S. Dist. LEXIS 132994, at *8 (Aug. 6, 2018), R & R adopted, 2018 U.S. Dist. LEXIS 155797 (E.D.N.Y. Sept. 11, 2018); see also 29 U.S.C. § 1132(a)(3). The success of Plaintiffs' claims with respect to any dues allegedly owed to its ERISA entities depends on the applicability of this statutory framework.

         The LMRA, in contrast, is a collection of federal statutes that apply generally to circumstances of “violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce.” 29 U.S.C. § 185(a); see generally 29 U.S.C. § 141 et seq.; see also Shea v. McCarthy, 953 F.2d 29, 30 (2d Cir. 1992) (“[T]he Labor Management Relations Act . . . provides in pertinent part that suits for violation of contracts between . . . labor organizations representing employees in an industry affecting interstate commerce may be brought in a United States District Court.” (internal quotation marks, brackets, and citations omitted)). Designed in part to “protect the rights of individual employees in their relations with labor organizations whose activities affect commerce, ” the LMRA provides that “any labor organization which represents employees in an industry affecting commerce . . . may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States.” 29 U.S.C. § 141, 185(b). The success of Plaintiffs' claims in this action with respect to any dues allegedly owed to its non-ERISA entities depends on the applicability of this federal legislative scheme.

         The Court considers first whether the parties to this action satisfy the interstate commerce element necessary to the applicability of ERISA and the LMRA. See 29 U.S.C. §§ 152(6), 1002(11).[4] As discussed above, despite invoking federal question jurisdiction under 28 U.S.C. § 1331 at the pleading stage by stating claims brought pursuant to ERISA and the LMRA, see Compl. ¶ 2, Plaintiffs fail to allege anywhere in their Complaint, affidavits, or supporting memoranda that any party to this action engages in or operates in an industry that has substantial effect on interstate or foreign commerce. As a general matter, a plaintiff's failure to allege an element of a cause of action at law in an action for default judgment constitutes grounds for dismissal of that claim. Cf., e.g., Fairfield Fin. Mortg. Grp. v. Luca, 584 F.Supp.2d 479, 488 (E.D.N.Y. 2008) (dismissing plaintiff's claim with leave to amend where plaintiff failed to allege bad faith in an action for unfair competition); Velez v. Vassallo, 203 F.Supp.2d 312, 330 (S.D.N.Y. 2002) (holding in context of a Fair Labor Standards Act (“FLSA”) case that where “showing that the defendant constitutes an enterprise engaged in commerce . . . is simply an element of the cause of action[;] . . . [a] plaintiff's failure to make this showing constitutes a failure on the merits”). Nonetheless, as this Court has held in the context of a plaintiff's failure to allege an interstate jurisdictional nexus in FLSA cases, the Court is entitled to take judicial notice of facts open to clear inference from the record in support of an otherwise neglected element of the plaintiff's case. See, e.g., Drice v. My Merch. Servs., LLC, No. 15 Civ. 0395 (MKB) (MDG), 2016 U.S. Dist. LEXIS 29006, at *9 (Mar. 4, 2016) (inferring, in context of considering defendant's liability for an alleged FLSA violation, “that [defendant was] engaged in interstate commerce” based on “the nature of the business that [defendant was] engaged in” even though “[p]laintiff d[id] not address the interstate commerce requirement in the complaint”), R & R adopted, 2016 U.S. Dist. LEXIS 42779, 2016 WL 1266948 (E.D.N.Y. Mar. 31, 2016); Huerta v. Victoria Bakery, No. 10 Civ. 4754 (RJD) (JO), 2012 U.S. Dist. LEXIS 46407, at *3-6 (E.D.N.Y. Mar. 30, 2012) (declining to accept a magistrate judge's “recommendation against drawing the requisite interstate commerce nexus” in an FLSA case, concluding instead that “the original complaint . . . provide[d] a sufficient basis . . . for inferring the requisite interstate commerce connection under the sensible approach adopted by other judges in this district”); Shim v. Millennium Group, No. 08 Civ. 4022 (FB) (VVP), 2009 U.S. Dist. LEXIS 6014, at *7-8 (E.D.N.Y. Jan. 28, 2009) (inferring the existence of an interstate commerce nexus from the facts alleged by plaintiffs' complaint even though “plaintiffs' complaint d[id] not explicitly allege that the corporate defendants [we]re an enterprise engaged in interstate commerce”).

         Even though Drice, Huerta, and Shim all involved unpaid wage claims, alleging violations of the FLSA, the proposition that a court can take judicial notice of facts alleged by a plaintiff's complaint in order to satisfy an interstate commerce element extends beyond the confines of the FLSA. Cases interpreting the interstate commerce element in the FLSA have equal import here, in the context of a dispute involving the application of the LMRA and ERISA, based on the heightened evidentiary standard in FLSA cases.[5] In McLeod v. Threlkeld, 319 U.S. 491, 493 (1943), the U.S. Supreme Court analyzed the statutory text of the FLSA and noted that “Congress did not intend that the regulation of hours and wages should extend to the furthest reaches of federal authority.” The Court cited an opinion from earlier that term, Walling v. Jacksonville Paper Co., 317 U.S. 564 (1943), in which the Court held that an employee is “engaged in commerce”, under §§ 6(a) and 7(a) of the FLSA, if that employee is in the “‘channels of interstate commerce' . . . as distinguished from those who merely affected that commerce.” McLeod, 319 U.S. at 493- 94 (citing Walling, 317 U.S. at 567); accord Xelo v. Mavros, No. 03 Civ. 3665 (NG) (MDG), 2005 U.S. Dist. LEXIS 21588, at *13 (E.D.N.Y. Sep. 28, 2005). In contrast, a plaintiff in an LMRA dispute need only show that the alleged “industry affect[s] commerce as defined under the LMRA” such that “in the event of a labor dispute between employers and unions within [the parties'] industry, commerce may be affected or impeded.” 470 Stratford Holding Co. v. Local 32B-32J, Serv. Emps. Int'l Union, 805 F.Supp. 118, 121 (E.D.N.Y. 1992) (internal citations and quotation marks omitted). Likewise, ERISA applies “to any employee benefit plan if it is established or maintained . . . by any employer engaged in commerce or in any industry or activity affecting commerce, ” including “any activity or industry affecting commerce within the meaning of the Labor Management Relations Act . . . .” 29 U.S.C. §§ 1002(12), 1003(a) (internal quotation marks omitted; emphasis added). Thus, because the LMRA and ERISA contain the lower “affecting” interstate commerce standard, rather than the heightened “channels” of interstate commerce standard, the Court can infer facts from the Plaintiff's complaint in order to satisfy the interstate commerce element.

         It is clear from Plaintiffs' supporting documents in this case that the present action concerns parties to a labor-related dispute engaged in the construction industry. See generally CBA, Dkt. No. 9-2. Specifically, the nature of labor performed by the parties involves “heavy construction work, ” Christian Aff., Dkt. No. 10, at ¶ 3, including “building and foundation construction below street level, . . . deconstruction or demolition work, . . . installation, relocation or removal of utilities, . . . and [most] construction commonly associated with public works, infrastructure or heavy civil construction, ” CBA, art. VIII § 1. Although Plaintiffs have failed to allege it explicitly, the construction industry has been identified repeatedly by federal courts as an industry affecting interstate commerce for the purposes of ERISA and the LMRA. See, e.g., Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 4-5 (1983) (holding that “a trust established by an agreement between four associations of employers active in the construction industry” was “unquestionably an ‘employee welfare benefit plan' within the meaning of § 3 of ERISA”); NLRB v. Plumbers Union of Nassau Cnty., 299 F.2d 497, 500 (2d Cir. 1962) (maintaining that “the nature of [a given] construction job” contributed toward a permissible inference “that a work stoppage by all the building crafts on [that] job would ...


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