International Brotherhood of Electrical Workers Local Union No. 22 and National Electrical Contractors Association Nebraska Chapter Health and Welfare Plan et al v. Morrissey Electric Company et al

Filing 34

ORDER - Plaintiffs' Motion to Strike Jury Demands (filing 19 ) is denied. Ordered by Magistrate Judge F.A. Gossett. (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL
UNION NO. 22 AND NATIONAL
ELECTRICAL CONTRACTORS
ASSOCIATION NEBRASKA
CHAPTER HEALTH AND
WELFARE PLAN, IBEW LOCAL
22/NECA PENSION PLAN A, IBEW
LOCAL 22/NECA DEFINED
CONTRIBUTION PLAN B, OMAHA
BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL
NO. 22 VACATION-HOLIDAY
TRUST FUND, OMAHA
ELECTRICAL JOINT TRAINING
AND APPRENTICESHIP TRUST
FUND, NATIONAL ELECTRICAL
BENEFIT FUND, and JULIE FAST,
in her representative capacity as a
fiduciary of the Plaintiff Funds,
Plaintiffs,
V.
MORRISSEY ELECTRIC
COMPANY, and BOSS ELECTRIC,
L.L.C.,

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

8:11CV152

ORDER

Defendants.

This matter is before the court on Plaintiffs’ Motion to Strike Jury Demands (filing
19). Having thoroughly reviewed the matter and relevant authorities, the court concludes that
Plaintiffs’ Motion should be denied.

BACKGROUND
The International Brotherhood of Electrical Workers Local Union No. 22 (“IBEW
Local 22"), National Electrical Contractors Association Nebraska Chapter Health and
Welfare Plan (“Health & Welfare Plan”), IBEW Local 22/NECA Pension Plan A (“Pension
Plan A”), IBEW Local 22/NECA Defined Contribution Plan B (“Pension Plan B”), Omaha
Brotherhood of Electrical Workers Local 22 Vacation-Holiday Trust Fund (“Vacation
Fund”), Omaha Electrical Joint Apprenticeship and Training Trust Fund (“Apprenticeship
Fund”) and National Electrical Benefit Fund (“NEBF”) (collectively referred to herein as
“Plaintiffs”) brought suit against Morrissey Electric Company, Inc. (“Morrissey”) and Boss
Electric LLC (“Boss”) (collectively referred to herein as “Defendants”) pursuant to §§ 502
and 515 of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1132
and 1145, to collect delinquent fringe benefit contributions, liquidated damages, interest and
attorney’s fees.
Plaintiffs allege that Morrissey is a signatory to certain collective bargaining
agreements (“CBAs”) with the IBEW Local 22 which govern the terms and conditions of
employment of all IBEW Local 22 members while such members are employed by
Morrissey. Under the terms of the CBAs, Morrissey is required to submit contributions to
the Health & Welfare Plan, Pension Plan A, Pension Plan B and the Vacation Fund. The
amount of each contribution is determined by the terms of the CBAs and is based upon the
number of hours of work performed by IBEW Local 22 members working for Morrissey in
a given month. Plaintiffs maintain that Boss is an “alter-ego” of Morrissey and was
established for the purpose of avoiding the obligations imposed on Morrissey under the
CBAs. Plaintiffs assert that as an alter-ego, Boss is bound by the terms and conditions of the
CBAs and that Boss has failed to honor its obligations under the CBAs. Defendants deny
that Boss is an alter-ego of Morrissey and have requested a jury trial.
ANALYSIS
Plaintiffs have moved to strike Defendants’ jury demands on the ground that a jury
trial is not available for ERISA claims. Defendants oppose the Motion, arguing that under
2

certain circumstances, a jury trial is available in claims brought pursuant to ERISA.
Specifically, Defendants contend that because Plaintiffs’ claim for delinquent contributions
is essentially one for breach of contract, it is legal and nature and should be tried to a jury
pursuant to 29 U.S.C. § 1132(g)(2) and the Seventh Amendment. Defendants cite several
cases from other jurisdictions in which courts have concluded that a right to jury trial exists
in ERISA actions against employers for delinquent contributions. See Sheet Metal Workers
Local 19 v. Keystone Heating and Air Conditioning, 934 F.2d 35 (3rd Cir. 1991); Capozza
Tile Co., Inc. v. Joy, 223 F.Supp.2d 307 (D. Me. 2000).
In support of its Motion, Plaintiffs cite In re Vorpahl, 695 F.2d 318 (8th Cir. 1982),
in which the Eighth Circuit Court of Appeals concluded that a jury trial is not required under
ERISA § 502, 29 U.S.C. § 1132. However, as noted by other courts, the Vorpahl court “did
not expressly or implicitly state that all ERISA actions may not be appropriately tried to a
jury.” Utilicorp United Inc. for Benefit of Ultilicorp United, Inc. Employee v. Kemper
Financial Services, Inc., 741 F.Supp. 1363, 1367 n.4 (W.D. Mo. 1989). In Vorpahl, the
Eighth Circuit did not address the question of whether a party is entitled to a jury trial in
claims against employers bound by collective bargaining agreements to collect delinquent
contributions under ERISA.
Neither party has provided the court with any United States Supreme Court or Eighth
Circuit authority addressing the question of whether claims for delinquent contributions may
be tried by jury. In the absence of binding authority directly speaking to the issue at hand,
the court will decline to strike Defendants’ jury demand.

“For we believe that in

questionable cases such as the instant case, the strong federal policy governing jury trials is
controlling.” Id. at 1367. See also Bower v. Bunker Hill Co., 675 F.Supp. 1254, 1262 (E.D.
Wash. 1986) (stating that “the strong federal policy favoring jury trials provides impetus for
finding the right to a jury trial in questionable cases.”)
Accordingly, for the reasons explained herein,
IT IS ORDERED that Plaintiffs’ Motion to Strike Jury Demands (filing 19) is
denied.
3

DATED November 21, 2011.
BY THE COURT:

S/ F.A. Gossett
United States Magistrate Judge

NOTICE
A party may object to a magistrate judge's order by filing a Statement of Objections
to Magistrate Judge’s Order within fourteen days after being served with the order. The
objecting party must comply with the requirements of NECivR 72.2.

4