Plumbers' Pension Fund, Local 130, U.A. et al v. Daniel Pellegrini Plumbing, LLC

Filing 77

MEMORANDUM Opinion and Order Signed by the Honorable Steven C. Seeger on 1/18/2023. For the foregoing reasons, the motion to dismiss (Dckt. No. 70 ) is hereby granted in part and denied in part. Mailed notice. (jjr, )

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PLUMBERS’ PENSION FUND,
LOCAL 130, U.A., et al.,

)
)
)
Plaintiffs,
)
)
v.
)
)
PELLEGRINI PLUMBING, LLC and
)
DANIEL PELLEGRINI PLUMBING,
)
LLC,
)
)
Defendants.
)
____________________________________)

Case No. 20-cv-5024
Hon. Steven C. Seeger

MEMORANDUM OPINION AND ORDER
Construction and plumbing companies often enter into collective bargaining agreements
with local unions, and have to pay contributions for fringe benefits for their workers. If they
don’t pay the contributions, the pension funds can come after them for the amounts owed. The
case at hand is case in point.
Plumbers’ Pension Fund, Local 130 and a few other pension funds filed suit against
Daniel Pellegrini Plumbing, LLC, seeking to recover unpaid contributions owed by a dissolved
company (Pellegrini Plumbing, LLC). They later filed an amended complaint, advancing new
claims and adding Pellegrini Plumbing, LLC as a defendant.
Defendants, in turn, moved to dismiss for lack of subject matter jurisdiction. The motion
to dismiss is granted in part and denied in part.
Background
Plumbers’ Pension Fund, Local 130 and the other Plaintiffs are pension funds that receive
contributions from employers under collective bargaining agreements. One of those employers

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was Pellegrini Plumbing, LLC. As a signatory to the CBA, the company had to make fringe
benefit contributions to the Funds for all hours worked by Local 130 Union members, nonmembers who performed plumbing work, or subcontractors who performed plumbing work for
the company.
Pellegrini Plumbing, LLC is not to be confused with Daniel Pellegrini Plumbing, LLC. If
the names look similar, that’s the whole point. The gist of the lawsuit is that the new company
(Daniel Pellegrini Plumbing, LLC) is responsible for the obligations of the old company
(Pellegrini Plumbing, LLC).
This case is the second time that the parties have come to the federal courthouse. In
2014, before Daniel Pellegrini Plumbing, LLC sprang into existence, the Funds sued Pellegrini
Plumbing, LLC to recover unpaid contributions under the CBA. In 2016, Judge Shah entered
judgment against Pellegrini Plumbing, LLC for $737,967.38. See Plumbers’ Pension Fund, Loc.
130, U.A. v. Pellegrini Plumbing, LLC, No. 14-cv-9933 (N.D. Ill. 2016) (Dckt. No. 56).
Pellegrini Plumbing, LLC paid some, but not all, of the judgment. The company
eventually went bust and dissolved, leaving hundreds of thousands of dollars of unpaid
contributions.
The owner of the company, Daniel Pellegrini, turned over a new leaf (or, depending on
your perspective, maybe he turned over the same leaf). In 2019, Daniel Pellegrini created a new
company: Daniel Pellegrini Plumbing, LLC.
The following year, the Funds returned to the federal courthouse and filed this follow-on
case. The Funds basically seek to hold the new company (Daniel Pellegrini Plumbing, LLC)
responsible for the unpaid contributions owed by the old company (Pellegrini Plumbing, LLC).

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The Funds have filed two complaints in the case at hand. The original complaint
included only one claim against only one defendant. The Funds brought a successor liability
claim under ERISA against Daniel Pellegrini Plumbing, LLC for the unpaid contributions. The
complaint alleged that Daniel Pellegrini Plumbing, LLC “was incorporated on November 7, 2019
for the specific intent of continuing the business operations of Pellegrini Plumbing, LLC and
avoiding trust fund liability when Pellegrini Plumbing, LLC became in default of its obligations
to the Plaintiffs.” See Cplt., at ¶ 7 (Dckt. No. 1).
According to the original complaint, Daniel Pellegrini (meaning the natural person) is the
plumber behind the curtain of both companies, and he simply continued the business operations
of Pellegrini Plumbing, LLC under a new name (Daniel Pellegrini Plumbing, LLC). The new
company has the same location, the same workforce, and so on, as the old company. Id. at
¶¶ 10–16. As the Funds see it, Pellegrini Plumbing, LLC breached the collective bargaining
agreement by failing to make contributions, and Daniel Pellegrini Plumbing, LLC is on the hook
for those liabilities as its successor. Id. at ¶¶ 21–22.
Daniel Pellegrini Plumbing, LLC, in turn, raised an issue about the existence of subject
matter jurisdiction. See Def.’s Resp., at 2–4 (Dckt. No. 56). It flagged the fact that the
complaint included only a successor liability claim. And it pointed to a Seventh Circuit case,
East Central Illinois Pipe Trades Health & Welfare Fund v. Prather Plumbing & Heating, Inc.,
3 F.4th 954 (7th Cir. 2021), which held that federal courts lack jurisdiction over a standalone
claim for successor liability to enforce a prior ERISA judgment.
This Court, in turn, ordered the Funds to file a statement and address subject matter
jurisdiction. See 4/25/22 Order (Dckt. No. 61). The Funds later did so. See Pls.’ Statement
(Dckt. No. 64).

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But instead of defending that complaint, the Funds elected to file a new one. See Am.
Cplt. (Dckt. No. 66). The Funds filed an amended complaint with four counts. This time, the
amended complaint included Pellegrini Plumbing, LLC (the old company) as a defendant, too.
Count I is an alter ego claim under ERISA against Daniel Pellegrini Plumbing, LLC
(only). It alleges that Daniel Pellegrini Plumbing, LLC is the alter ego of Pellegrini Plumbing,
LLC, and thus is responsible for its unpaid contributions.
Count II alleges a breach of the collective bargaining agreement by both Pellegrini
Plumbing, LLC and Daniel Pellegrini Plumbing, LLC. The amended complaint points to
language in the CBA, alleging that the agreement “shall be equally binding on the Employer and
its successors and assigns.” Id. at ¶ 39 (quoting Collective Bargaining Agreement, at § 14.2
(Dckt. No. 66-2)). The amended complaint alleges that Pellegrini Plumbing, LLC breached the
agreement by failing to notify the Union that it was “changing its name.” Id. at ¶ 41. The
amended complaint also alleges that Daniel Pellegrini, LLC, “as a successor,” violated the
collective bargaining agreement by failing to pay “for all plumbing work performed by” the two
companies. Id. at ¶ 43.
Count III is a successor in interest claim against Daniel Pellegrini, LLC under Illinois
law.
Finally, Count IV is called “Successor in Interest Federal Law against Defendant Daniel
Pellegrini [Plumbing, LLC].” Id. at 11. Count IV alleges that Daniel Pellegrini Plumbing, LLC
is the successor in interest of Pellegrini Plumbing, LLC, and therefore is obligated to pay
Pellegrini Plumbing, LLC’s debts. Id. at ¶¶ 64, 68.

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Count IV invokes the section of ERISA that requires contribution payments. Id. at ¶ 59
(citing 29 U.S.C. § 1145). The amended complaint also invokes the enforcement provision of
ERISA (29 U.S.C. § 1132, also known as section 502 of ERISA), as well as federal common
law. See Am. Cplt., at ¶¶ 59–60 (Dckt. No. 66). According to the Funds, Count IV falls within
the Court’s supplemental jurisdiction, see 28 U.S.C. § 1367(a), as a claim related to the federal
claims in Counts I and II. See Am. Cplt., at ¶ 58.
Defendants responded by renewing the challenge to subject matter jurisdiction. See
Defs.’ Mtn. to Dismiss (Dckt. No. 70). By and large, the motion to dismiss focuses on the
jurisdictional statement that the Funds filed in response to this Court’s query about the original
complaint. There isn’t much of a discussion of the amended complaint.
Daniel Pellegrini Plumbing, LLC points out that it was not a party to the collective
bargaining agreement. And once again, it relies on the Seventh Circuit’s decision in Prather
Plumbing. In the end, Defendants seeks dismissal “with prejudice,” which isn’t possible when a
dismissal rests on a lack of subject matter jurisdiction. See Lewert v. P.F. Chang’s China Bistro,
Inc., 819 F.3d 963, 969 (7th Cir. 2016) (“The district court here dismissed the plaintiffs’ claims
for lack of subject-matter jurisdiction, which is a dismissal without prejudice.”).
Discussion
By all appearances, Defendants seem to challenge the existence of subject matter
jurisdiction by aiming at the wrong target. The motion to dismiss focuses on the jurisdictional
statement about the original complaint, without devoting much attention to the amended
complaint.
That said, district courts have an independent obligation to confirm the existence of
subject matter jurisdiction. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). After taking

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a close look, the Court concludes that the amended complaint fills the jurisdictional potholes
spotted in the original complaint (but not entirely).
Taking a step back, the amended complaint includes a claim for alter ego liability (Count
I), and claims for successor liability (Counts III and IV). The two doctrines often come into play
in the same case, but they are fundamentally different. Alter ego liability is direct liability – that
is, it is liability based on the defendant’s own conduct. But successor liability is vicarious
liability – that is, it is about holding the defendant liable for the conduct of someone else.
By way of illustration, imagine filing suit against Batman, based on the conduct of Bruce
Wayne. That’s alter ego liability. Batman and Bruce Wayne are the same person. The face
behind the mask is the same as the face without the mask. So suing one is the same as suing the
other.
On the flipside, imagine suing Superman and attempting to hold him liable for the torts
committed by Batman (maybe they have an agreement as members of the Justice League, or
maybe he bought the assets and liabilities of Wayne Enterprises). That’s successor liability – the
defendant is holding the bag for wrongs committed by someone else.
The amended complaint at hand includes claims that fall into each category. Count I is
an alter ego claim under ERISA, alleging that Pellegrini Plumbing, LLC and Daniel Pellegrini
Plumbing, LLC are one and the same.
This Court has jurisdiction over an alter ego claim because it involves direct liability, not
vicarious liability. That is, it is a claim that the defendant itself has violated ERISA. See Bd. of
Trs., Sheet Metal Workers’ Nat’l Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1038 (7th
Cir. 2000) (“[A] contention that A is B’s ‘alter ego’ asserts that A and B are the same entity;
liability then is not vicarious but direct.”) (emphasis in original); Boim v. Am. Muslims for

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Palestine, 9 F.4th 545, 553 (7th Cir. 2021) (“If Company A and Company B, though nominally
two enterprises, are effectively a singular organization operating under two names, then A is
directly responsible for B’s obligations and wrongdoings because they are one and the same
organization. . . . But the mere fact that two entities are alter egos does not give rise to liability
on its own – the underlying liability must arise from some source of substantive law, state or
federal.”); Cent. States, Se. & Sw. Areas Pension Fund v. Cent. Transp., Inc., 85 F.3d 1282,
1284–86 (7th Cir. 2021).
The Seventh Circuit cemented the point in Prather Plumbing. “In Elite Erectors, we
reasoned that alter ego liability arguments are, in substance, claims for direct liability under
ERISA, because they allege that a new company is one and the same as the old company and has
therefore violated ERISA by failing to comply with the contractual obligations of the old
company.” See Prather Plumbing, 3 F.4th at 962. In that situation, “a fund can invoke the cause
of action in ERISA, 29 U.S.C. § 1132, to pursue a claim against the alleged alter ego for itself
violating ERISA.” Id. at 962–63.
In short, this Court has subject matter jurisdiction over the alter ego claim (Count I). The
Funds allege that Daniel Pellegrini Plumbing, LLC is the alter ego of Pellegrini Plumbing, LLC,
so a violation of ERISA by one is a violation of ERISA by the other. In essence, it is a claim that
Daniel Pellegrini Plumbing, LLC itself violated ERISA, because Daniel Pellegrini Plumbing,
LLC is Pellegrini Plumbing, LLC. Unmasked, Daniel Pellegrini Plumbing, LLC’s true identity
is Pellegrini Plumbing, LLC.
This Court has jurisdiction over Count II as well. That claim alleges that both
Defendants breached the collective bargaining agreement and thus violated the (federal) Labor
Management Relations Act. See 28 U.S.C. § 185. More specifically, the amended complaint

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alleges that Pellegrini Plumbing, LLC is liable as the signatory, and that Daniel Pellegrini
Plumbing, LLC is liable as the “successor” within the meaning of the collective bargaining
agreement. See Am. Cplt., at ¶¶ 38, 40–41, 43 (Dckt. No. 66). The collective bargaining
agreement includes a provision that binds successors, at least in certain circumstances. See
Collective Bargaining Agreement, at § 14.2 (Dckt. No. 66-2) (“This Agreement shall be equally
binding on the Employer and its successors and assigns . . . .”).
That claim may or may not pan out in the end, but jurisdiction does not depend on
success on the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)
(“It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of
action does not implicate subject-matter jurisdiction, i.e., the courts’ statutory or constitutional
power to adjudicate the case.”) (emphasis in original); Bell v. Hood, 327 U.S. 678, 682 (1946)
(“Jurisdiction, therefore, is not defeated as respondents seem to contend, by the possibility that
the averments might fail to state a cause of action on which petitioners could actually recover.
For it is well settled that the failure to state a proper cause of action calls for a judgment on the
merits and not for a dismissal for want of jurisdiction.”). What matters is that the Funds have
alleged that the Defendants violated a federal statute.
The third claim falls under state law. Count III is a successor liability claim, seeking to
hold Daniel Pellegrini Plumbing, LLC responsible for the obligations of Pellegrini Plumbing,
LLC. This Court can exercise supplemental jurisdiction over that state law claim. This Court
has original jurisdiction over the first two claims, and the third claim is so related that it forms
the same case or controversy. See 28 U.S.C. § 1367. It is the jurisdictional equivalent of
in-for-a-penny, in-for-a-pound.

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The fourth and final claim is more problematic. Count IV is a successor liability claim
under federal law. The amended complaint invokes the section of ERISA that requires
contribution payments (29 U.S.C. § 1145), plus ERISA’s enforcement provision (29 U.S.C.
§ 1132). See Am. Cplt., at ¶ 59 (Dckt. No. 66). The amended complaint invokes federal
common law, too. Id. at ¶ 60. Count IV also alleges a breach of the collective bargaining
agreement by both Defendants (but the claim itself is against only the new company, Daniel
Pellegrini Plumbing, LLC). Id. at ¶ 67.
That claim gets clogged in the works by Prather Plumbing. There, the Seventh Circuit
expressly concluded that there is no “standalone federal right of action to collect an ERISA
judgment against an alleged successor.” See Prather Plumbing, 3 F.4th at 961; see also id. at
963 (“As there is no federal statutory right of action for successor liability under ERISA, nor a
judicially recognized private implied right of action, the funds have failed to demonstrate that
this claim arises under federal law.”); Peacock v. Thomas, 516 U.S. 349, 353 (1996) (“We are
not aware of . . . any provision of ERISA that provides for imposing liability for an extant
ERISA judgment against a third party.”); Mackey v. Lanier Collection Agency & Serv., Inc., 486
U.S. 825, 833 (1988) (“ERISA does not provide an enforcement mechanism for collecting
judgments . . . .”).1

1

Other areas of ERISA recognize successor liability. A common example is withdrawal liability,
meaning liability when an employer leaves a multiemployer pension plan and the successor must pay the
proportionate share of unfunded liabilities for vested benefits. See Ind. Elec. Workers Pension Benefit
Fund v. ManWeb Servs., Inc., 884 F.3d 770, 773–74 (7th Cir. 2018) (“The Employee Retirement Income
Security Act of 1974 (ERISA), as amended by the Multiemployer Pension Plan Amendments Act of 1980
(MPPAA), establishes withdrawal liability for employers leaving a multiemployer pension plan. 29
U.S.C. § 1381. . . . Successor liability can apply under the MPPAA when the purchaser had notice of the
liability and there is continuity of business operations.”); see also id. at 775–76.

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There, as here, the litigants invoked ERISA’s civil enforcement provision (29 U.S.C.
§ 1132) and the provision requiring contributions (29 U.S.C. § 1145). See Prather Plumbing, 3
F.4th at 961; Pls.’ Resp., at 8 (Dckt. No. 72) (“Section 1132 provides a specific right of action for
the Plaintiff Trust Funds to enforce § 1145 against the Defendants in the instant action as the
Plaintiffs are pursuing pre-existing and current obligations against Defendants.”) (emphasis in
original). But the Seventh Circuit concluded that those provisions do not create a cause of action
for successor liability to enforce a prior judgment. See Prather Plumbing, 3 F.4th at 961
(“Although the funds cite two provisions of ERISA in their jurisdictional statement on appeal –
the civil enforcement provision, 29 U.S.C. § 1132, and the provision mandating that employers
contribute to multiemployer benefits plans, id. § 1145 – neither section authorizes a lawsuit to
hold a successor liable for a prior ERISA judgment.”). So, invoking ERISA does the Funds no
good because the statute does not create a cause of action to enforce a prior judgment against a
successor in interest.
The Seventh Circuit added that invoking federal common law is not enough to give rise
to a cause of action, either. “We have recognized that successor liability in the ERISA domain is
a creation of federal common law. In that sense, the funds’ complaint implicates federal law.
But it does not necessarily follow that federal law has also created a cause of action to enforce
this doctrine in federal court.”2 Id. at 960 (citation omitted).
The Funds seek refuge in McCleskey v. CWG Plastering, LLC, 897 F.3d 899 (7th Cir.
2018), but it cannot come to the rescue of Count IV, at least not entirely. There, the Seventh

2

Federal common law does not create a claim for successor liability for a prior judgment in this context.
But federal common law could come into play if a complaint alleged that the successors themselves were
violating ERISA. See McCleskey v. CWG Plastering, LLC, 897 F.3d 899 (7th Cir. 2018). In that
situation, federal common law could determine whether the alleged successors are, in fact, successors.
But federal common law itself does not give rise to an ERISA claim.

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Circuit addressed the viability of a successor liability claim when the complaint alleged a
continuing violation of a collective bargaining agreement signed by a predecessor. Id. at 902–03
(“In our case, the Funds argue that CWG is engaged in an ongoing violation of the NLRA and
ERISA by failing to comply with an extant collective bargaining agreement.”). The Court of
Appeals held that subject matter jurisdiction existed because the complaint alleged a violation of
a federal statute.
So, putting it all together, under ERISA, a plaintiff cannot sue a successor to enforce a
prior judgment entered against its predecessor. That’s Prather Plumbing. But a plaintiff can sue
a successor who is bound by a collective bargaining agreement when the plaintiff alleges that the
successor continues to violate that agreement. That’s McCleskey.
Applying those principles here, the viability of Count IV depends on what, exactly, the
Funds are alleging. One way to read the claim is that Daniel Pellegrini Plumbing, LLC is the
successor to Pellegrini Plumbing, LLC, and as the successor, it is liable for its predecessor’s
liabilities – including the outstanding judgment for unpaid contributions. See Am. Cplt., at ¶ 68
(Dckt. No. 66) (“Daniel Pellegrini [Plumbing, LLC] succeeded to the liability of Pellegrini
[Plumbing, LLC] when [it] took over and continued the business operations of Pellegrini
[Plumbing, LLC] . . . .”). That is, it is possible to read Count IV to allege that Daniel Pellegrini
Plumbing, LLC is responsible for paying the tab of Pellegrini Plumbing, LLC, but is not itself
committing any ongoing violations of ERISA. If so, that’s not a claim under ERISA. See
Prather Plumbing, 3 F.4th at 961–63.3

3

This Court has federal question jurisdiction in light of the alter ego claim (Count I) and the claim about
breaching the collective bargaining agreement (Count II). So, in theory, a district court could exercise
supplemental jurisdiction over some other claim, even if the court would not have original jurisdiction
over that claim standing alone. Supplemental jurisdiction would make sense if the amended complaint
alleged a violation of state law (like Count III). See 13D Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 3567 (3d ed. Apr. 2022 update) (“Supplemental claims are governed by

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Another way to read Count IV is that Daniel Pellegrini Plumbing, LLC is the successor to
Pellegrini Plumbing, LLC under the collective bargaining agreement, and as the successor,
Daniel Pellegrini Plumbing, LLC itself is breaching the collective bargaining agreement. See
Am. Cplt., at ¶ 67 (Dckt. No. 66) (“Pellegrini [Plumbing, LLC] and Daniel Pellegrini [Plumbing,
LLC] breached the provisions of the CBA and Trust Agreements by failing to submit fringe
benefit contributions to the Trust Funds.”). If so, that’s a claim under ERISA. See McCleskey,
897 F.3d at 902–03; see also Prather Plumbing, 3 F.4th at 960 (noting that the claim in
McCleskey “belonged in federal court because . . . the funds alleged that the son’s business was
‘engaged in an ongoing violation of the NLRA and ERISA by failing to comply with an extant
collective bargaining agreement’”) (quoting McCleskey, 897 F.3d at 903).
In sum, there is no federal cause of action for successor liability under ERISA to enforce
a prior judgment, so the last claim cannot survive to the extent that it alleges otherwise. But
Count IV survives to the extent that the Funds are alleging that Daniel Pellegrini Plumbing, LLC
itself is breaching the collective bargaining agreement.4

state substantive law.”). But supplemental jurisdiction is not a hook for allowing a claim that invokes
ERISA when there is no such claim under ERISA. In other words, ERISA does not recognize a claim for
successor liability for a prior judgment – meaning holding one company responsible for a judgment
entered against another company – so supplemental jurisdiction cannot save the day.
4
At first blush, it isn’t always easy to see the dividing line between a failure to state a claim, and a lack
of federal question jurisdiction, when a complaint invokes a federal statute. In other words, when does
the non-existence of a claim under a federal statute become a jurisdictional problem? In Peacock, the
Supreme Court noted the non-existence of a claim, stating that it was “not aware of . . . any provision of
ERISA that provides for imposing liability for an extant ERISA judgment against a third party.” See
Peacock, 516 U.S. at 866. The Supreme Court later added that the plaintiff “failed to allege a claim under
§ 502(a)(3) for equitable relief.” Id. In the end, the problem was jurisdictional because the plaintiff did
not allege a violation of a federal statute. “Even if ERISA permits a plaintiff to pierce the corporate veil
to reach a defendant not otherwise subject to suit under ERISA, Thomas could invoke the jurisdiction of
the federal courts only by independently alleging a violation of an ERISA provision or a term of the
plan.” Id. That is, the district court lacked subject matter jurisdiction “[b]ecause Thomas alleged no
‘underlying’ violation of any provision of ERISA or an ERISA plan.” Id. at 867; see also McCleskey,
897 F.3d at 902–03 (“[T]he Funds argue that CWG is engaged in an ongoing violation of the NLRA and
ERISA by failing to comply with an extant collective bargaining agreement. To the extent that

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Conclusion
For the foregoing reasons, the motion to dismiss is hereby granted in part and denied in
part. The motion to dismiss Count IV is granted to the extent that it alleges successor liability
under ERISA to enforce a prior judgment without an ongoing violation of the collective
bargaining agreement by Daniel Pellegrini Plumbing, LLC. The motion to dismiss is otherwise
denied.

Date: January 18, 2023
Steven C. Seeger
United States District Judge

Peacock rested on a concern about the existence of a federal basis for the action, it does not appear to
apply here.”) (emphasis added).

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