Charles Langone, Fund Manager of the New England Teamsters and Trucking Industry Pension Fund v. N&D Transportation Company, Inc. et al

Filing 127

Judge Rya W. Zobel: Memorandum of Decision and ORDER entered denying 97 Motion to Dismiss. Accordingly, the parties shall submit, by August 3, 2018, a joint proposed briefing schedule together with suggested dates for argument. In the meantime the court will reserve ruling on the remaining motions to dismiss. (Urso, Lisa)

Case 1:14-cv-11028-RWZ Document 127 Filed 07/23/18 Page 1 of 2

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 14-11028-RWZ

CHARLES LANGONE,
Fund Manager of the New England Teamsters
and Trucking Industry Pension Fund
v.
N&D TRANSPORTATION COMPANY, INC., et al.

MEMORANDUM OF DECISION AND ORDER
July 23, 2018

ZOBEL, S.D.J.
On September 24, 2012, the court entered a default judgment in the amount of
$1,505,186.18 for the New England Teamsters and Trucking Industry Pension Fund
(the “Fund”) against D&N Transportation Company, Inc., for unpaid withdrawal liability
pursuant to ERISA. See Langone v. D&N Transportation Co., Inc., C.A. No. 12-10646NMG (D. Mass. Sept. 24, 2012) (ECF No. 14). The judgment remains unsatisfied. In
March 2014, the Fund filed a new complaint against a new entity, N&D Transportation
Company, Inc., as well as a number of individuals and a corporation asserting their
liability based on alter ego, fraudulent transfer, and reach-and-apply theories. See
Langone v. N&D Transportation Co., Inc., C.A. No. 14-11028-RWZ. That case is
before me on motions by all current defendants to dismiss the Fund’s Third Amended
Complaint for a number of different reasons.

Case 1:14-cv-11028-RWZ Document 127 Filed 07/23/18 Page 2 of 2

A.

N&D’s Motion to Dismiss
N&D, the pivotal defendant, argues that the claim against it must be dismissed

because plaintiff failed to provide it with notice of the withdrawal liability as required by
ERISA. However, defendant concedes that D&N was provided with satisfactory notice
and that the Third Amended Complaint adequately pleads that N&D is an alter ego of
D&N. As the Third Circuit reasoned in Foodtown, “[i]t is unnecessary to notify a
corporation's alter ego because notice is accomplished through the alter ego
relationship.” See Bd. of Trustees of Teamsters Local 863 Pension Fund v. Foodtown,
Inc., 296 F.3d 164, 175 (3d Cir. 2002). Since “notice to [D&N] served as notice to its
alter egos,” including N&D, N&D’s motion to dismiss (Docket # 97) is denied. See id.
B.

Moving Forward Efficiently
At the hearing on defendants’ motions to dismiss, the court suggested that if

N&D’s motion were denied the parties could more efficiently resolve the entire case by
litigating the claim against this defendant separately from and before the claims against
the others. Plaintiff indicated that he would proceed by motion for summary judgment
and all parties were amenable to that course of action.
Accordingly, the parties shall submit, by August 3, 2018, a joint proposed briefing
schedule together with suggested dates for argument. In the meantime the court will
reserve ruling on the remaining motions to dismiss.

July 23, 2018

/s/Rya W. Zobel

DATE

RYA W . ZOBEL
SENIOR UNITED STATES DISTRICT JUDGE

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