Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Management Cooperation, Pension and Welfare Funds v. John J. Pausley, Inc. et al

Filing 14

MEMORANDUM & ORDER denying 10 Motion to Dismiss; denying 10 Motion to Dismiss for Lack of Jurisdiction; denying 10 Motion to Dismiss for Failure to State a Claim; For the foregoing reasons, Defendants' motion to dismiss is DENIED. So Ordered by Judge Joanna Seybert on 6/16/2014. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
TRUSTEES OF EMPIRE STATE CARPENTERS
ANNUITY, APPRENTICESHIP, LABORMANAGEMENT COOPERATION, PENSION
AND WEFARE FUNDS,
Plaintiffs,

MEMORANDUM & ORDER
13-CV-1629(JS)(GRB)

-againstJOHN J. PAUSLEY, INC. and TERRY
BAILEY CONSTRUCTION INC.,
Defendants.
----------------------------------------X
APPEARANCES
For Plaintiffs:
Charles R. Virginia, Esq.
Nathan V. Bishop, Esq.
Michael Bauman, Esq.
Virginia & Ambinder LLP
111 Broadway, Suite 1403
New York, NY 10006
For Defendants:

Carla McKain, Esq.
McKain Law, PLLC
136 E State Street
Ithaca, NY 14850

SEYBERT, District Judge:
Currently pending before the Court is defendants John
J.

Pausley,

Inc.’s

Inc.

(“Bailey

(“Pausley”)

and

Construction”

“Defendants”) motion to dismiss.

Terry

and,

Bailey

together

Construction,
with

Pausley,

For the following reasons,

Defendants’ motion is DENIED.
BACKGROUND
Plaintiffs Trustees of Empire State Carpenters Annuity,
Apprenticeship, Labor-Management Cooperation, Pension and Welfare

Funds (“Plaintiffs” or “Trustees”) commenced this action on March
26, 2013 pursuant to Sections 502(a)(3) and 515 of the Employee
Retirement Income Security Act of 1974 (“ERISA”), as amended 29
U.S.C.

§§

1132(a)(3)

and

1145;

Section

301

of

the

Labor

Management Relations Act of 1947 (“LMRA”), as amended, 29 U.S.C.
§ 185; and Section 9 of the Federal Arbitration Act (“FAA”), 9
U.S.C.

§

9,

against

Defendants

to

confirm

and

enforce

an

Arbitrator’s Award (the “Award”).
Plaintiffs

are

the

Trustees

of

the

Empire

State

Carpenters Annuity, Apprenticeship, Pension and Welfare Funds and
of the Empire State Carpenters Labor Management Cooperation Fund
(together, the “Funds”).

(Compl. ¶¶ 4-5.)

Pausley and Bailey

Construction are New York corporations and employers within the
meaning of Section 3(5) of ERISA.
This

action

arises

(Compl. ¶¶ 6-7.)

from

the

Award

that

Plaintiffs

allege was rendered pursuant to a collective bargaining agreement
(“CBA”) between Northeast Regional Council of Carpenters f/k/a
the Empire State Regional Council of Carpenters (the “Union”) and
Pausley.

(Compl. ¶ 1.)

The CBA requires Pausley to, inter alia,

make periodic contributions to the Funds, submit periodic reports
to the Funds, and to furnish its books and records when requested
by the Funds for an audit.

(Compl. ¶ 9.)

Plaintiffs conducted

an audit of Pausley pursuant to the CBA covering the period of
January 2007 through December 2010.
2

(Compl. ¶ 10.)

The auditor

determined that Pausley failed to report and make contributions
in the principal amount of $86,045.20.

(Compl. ¶ 10.)

When

Pausley failed to remit the contributions uncovered by the audit,
a dispute arose, which was then submitted to arbitration pursuant
to a clause in the Funds’ collection policy (the “Collection
Policy”).

(Compl. ¶¶ 11-12.)
Ultimately,

on

January

11,

2013,

Arbitrator

J.J.

Pierson issued a written determination finding that Pausley was
in violation of the terms of the CBA and ordering Pausley to pay
the Funds $149,235.28, consisting of contributions of $86,045.20,
interest

of

$40,740.84,

liquidated

damages

of

$17,209.04,

auditing fees of $3,570.20, attorneys’ fees of $920.00, and the
arbitrator’s fee of $750.00.

(Compl. ¶¶ 13-14.)

In October 2012, Pausley’s owner, Terry Bailey, began
operating Bailey Construction.

(Compl. ¶ 15.)

Plaintiffs allege

that Pausley and Bailey Construction are both owned and managed
by

Mr.

Bailey

business

(Compl.

purposes,

¶

16);

have

operations,

substantially

office

staff,

identical
equipment,

customers, and/or supervision (Compl. ¶ 17); operate at the same
location (Compl. ¶ 18); and share common employees who perform
work

covered

by

the

CBA

(Compl.

¶

19).

According

Complaint,
Terry Bailey created Bailey Construction and
transferred
Pausley’s
assets,
employees,
customers, operations and business to Bailey
3

to

the

Construction
in
a
non-arm’s
length
transaction for the purpose of evading
Pausley’s obligations to the Funds under the
CBA, including Pausley’s obligation to pay
the Funds the amounts found in the audit
covering the period January 2007 through
December 2010.
(Compl. ¶ 20.)
Plaintiffs seek to confirm the arbitration award and
hold

Bailey

Construction

liable

as

Pausley’s

alter

ego

or

successor.
DISCUSSION
Defendants now move to dismiss Plaintiffs’ Complaint
for lack of subject matter jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(1) and failure to state a claim pursuant
to 12(b)(6).

The Court will first address the applicable legal

standards before turning to Defendants’ motion more specifically.
I. Legal Standards
A.

12(b)(1) Standard
“A

case

is

properly

dismissed

for

lack

of

subject

matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
resolving

a

motion

jurisdiction,
materials
questions.

to

the

Court

beyond

the

dismiss
may

for

lack

consider

pleadings

to

of

subject

affidavits
resolve

and

In

matter
other

jurisdictional

See Morrison v. Nat’l Australia Bank, Ltd., 547 F.3d
4

167, 170 (2d Cir. 2008).

The Court must accept as true the

factual allegations contained in the complaint, but it will not
draw

argumentative

inferences

in

favor

of

Plaintiffs

because

subject matter jurisdiction must be shown affirmatively.

See

id.; Atlanta Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968
F.2d 196, 198 (2d Cir. 1992); Shipping Fin. Servs. Corp. v.
Drakos, 140 F.3d 129, 131 (2d Cir. 1998).
subject

matter

jurisdiction

has

the

“A plaintiff asserting

burden

of

preponderance of the evidence that it exists.”

proving

by

a

Makarova, 201

F.3d at 113.
B. 12(b)(6)Standard
In deciding Rule 12(b)(6) motions to dismiss, the Court
applies a “plausibility standard,” which is guided by “[t]wo
working principles.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129

S. Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v. Mills,
572 F.3d 66, 71-72 (2d Cir. 2009).

First, although the Court

must

true,

accept

all

allegations

as

this

“tenet”

is

“inapplicable to legal conclusions;” thus, “[t]hreadbare recitals
of

the

elements

of

a

cause

of

action,

conclusory statements, do not suffice.”
accord Harris, 572 F.3d at 72.

supported

by

mere

Iqbal, 556 U.S. at 678;

Second, only complaints that

state a “plausible claim for relief” can survive a Rule 12(b)(6)
motion to dismiss.

Iqbal, 556 U.S. at 679.

Determining whether

a complaint does so is “a context-specific task that requires the
5

reviewing court to draw on its judicial experience and common
sense.”

Id.; accord Harris, 572 F.3d at 72.

II. Subject Matter Jurisdiction
Defendants first argue that neither ERISA nor the FAA
provide

a

basis

for

subject

matter

jurisdiction.

Plaintiff

counters that subject matter jurisdiction is appropriate under
both ERISA and the LMRA.

The Court agrees with Plaintiff that it

has jurisdiction pursuant to the LMRA.
Section
violation

of

organization

301

of

contracts

the

LMRA

between

representing

states
an

employees

that

employer

in

an

“[s]uits
and

industry

a

for

labor

affecting

commerce . . . may be brought in any district court of the United
States having jurisdiction of the parties . . . .”
185(a).

29 U.S.C. §

If the resolution of a state law claim requires the

interpretation

of

application

state

of

a

collective-bargaining
law

is

preempted

and

agreement,
federal

principles must be employed to resolve the dispute.

the

labor

law

See Lingle

v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.
Ct. 1877, 100 L. Ed. 2d 410 (1988).
It

is

well-established,

as

a

general

matter,

that

federal courts have jurisdiction to confirm arbitration awards.
See,

e.g.,

Apprenticeship,

Trs.

of

Empire

Labor-Mgmt.

Coop.

State
Pension

Carpenters
&

Welfare

Annuity,
Funds

v.

Miller Floor Covering, Inc., No. 12-CV-5660, 2013 WL 5366962, at
6

*5 (E.D.N.Y. Sept. 24, 2013) (holding that Section 301 of the
LMRA provided subject matter jurisdiction over trustees’ suit to
confirm an arbitration award); Trs. of Empire State Carpenters
Annuity, Apprenticeship, Labor Mgmt. Coop., Pension & Welfare
Funds

v.

Town

&

Country

Wood

Flooring

LLC,

No.

13-CV-

0040(JS)(WDW), 2013 WL 4807110, at *3 (E.D.N.Y. Sept. 9, 2013)
(same); Trs. of the Sheet Metal Workers Int’l Assoc. Local No. 38
Vacation Fund v. Katonah Roofing, Inc., Nos. 10-CV-1619, 11-CV8185, 2011 WL 9010113, at *7 (S.D.N.Y. Sept. 4, 2011) (“Federal
courts have jurisdiction to confirm labor arbitration awards.”).
Here, Defendants assert that the Arbitration Award was
based

upon

the

arbitration. 1

CBA,
(Defs.’

but

that

Reply

the

Br.,

CBA
Docket

did

not

Entry

provide
12,

at

for

1-2.)

Rather, Plaintiffs claim that the Award was proper due to a
clause within the Collection Policy, which is attached to the
Trust Agreements rather than the CBA.

(Defs.’ Reply Br. at 2.)

This raises a potential issue because Pausley was a signatory to,

1

Notably, Pausley participated in the arbitration proceedings
without objection. It is possible for a party to waive its
ability to contest the viability of an arbitration award. See
Katanah Roofing, Inc., 2011 WL 9010113, at *7 (noting the general
rule that, under New York law, one has ninety days to modify or
vacate an award or the affirmative defense will be barred
(citations omitted)). There is an exception, though, where the
“defendant is a ‘non-signatory’ to the relevant agreement
purporting to grant the plaintiff the right to arbitrate a
dispute.” Trs. of Int’l Union of Operating Engineers Local 30
Benefits Funds v. Nyack Hosp., 975 F. Supp. 2d 365, 375 (S.D.N.Y.
2013).
7

and indisputably bound by, the CBA.

The Trust Agreement and

Collection Policy, though, are separate documents from the CBA.
See AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643,
648, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986) (“[A]rbitration is
a matter of contract and a party cannot be required to submit to
arbitration any dispute which he has not agreed so to submit.”
(internal

quotation

marks

and

citation

omitted)).

Moreover,

while typically there is a presumption of arbitrability in a
dispute between an employer and a union arising from a CBA, this
presumption

does

not

apply

employer and trustees.
Pension

Fund

v.

540078,

at

TADCO

*7

where

the

dispute

is

between

an

See N.Y. City Dist. Council of Carpenters
Const.

(S.D.N.Y.

Corp.,

Feb.

No.

28,

07-CV-2712,

2008)

(citing

2008

WL

United

Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S.
574, 582-83 (1960) and Schneider Moving & Storage Co. v. Robbins,
466 U.S. 364, 371-73 (1984)).
In Nyack Hospital, for example, it was undisputed that
the

defendant

was

not

a

signatory

to

a

Collection Policy.

975 F. Supp. 2d at 366.

brought

to

an

action

enforce

an

against the defendant employer.

Id.

Trust

Agreement

or

There, the trustees

arbitration

order

obtained

Like the case at hand, the

arbitration award invoked the CBA as the source of authority for
arbitration.

Id. at 367.

The Court noted that something was

“amiss” in that Trust Agreement and Collection Policy were the
8

true sources of any potential arbitration authority.
69.

Id. at 368-

Thus, the Court stated that “Defendant is not a party to

either of those documents, and the law in the Second Circuit is
that an employer is not bound by non-essential provisions of plan
documents not signed by the employer that pays into a fund.”

Id.

at 369.
It would seem, then, that the logical inquiry would be
to consider whether the provisions at issue in this case are
essential such that Defendants are bound by them.

However, there

is a significant difference between Nyack Hospital and this case.
In Nyack Hospital, it was undisputed that the defendant was not a
signatory to the Trust Agreement and the trustees asserted that
defendants were bound by the Trust Agreement because it made
contributions to a benefit fund pursuant to the CBA.
Contributions

did

not

necessarily

entire Trust Agreement.
CBA

specifically

Id. at 369-70.

provided

incorporated by reference.
of

this

agreement

will

bind

that

the

the

Id. at 369.

defendant

to

the

Here, in contrast, the
Trust

Agreement

was

(Defs.’ Reply Br. at 2 (“Acceptance

automatically

bind

all

participating

contractors to the Trust Agreements and Amendments thereto under
which the funds are operating and shall be considered a part of
this Agreement in the same manner as if fully set forth herein.”
(citing the CBA)).)

Where that is the case, federal courts have

exercised jurisdiction.

See Dodge Hyundai of Paramus v. United
9

Welfare Fund, Welfare Div., No. 11-CV-0979, 2011 WL 4356373, at
*3 (E.D.N.Y. Sept. 16, 2011) (“While the court finds that the CBA
itself does not confer a right to compel arbitration on the Funds
because they are non-parties, the court finds that the terms of
the Trust Agreement to which both parties . . . are bound . . .
evidences

a

clear

and

unambiguous

agreement

to

arbitrate

delinquent contribution disputes.”); TADCO Const. Corp., 2008 WL
540078, at *1 (exercising jurisdiction where the Trust Agreement
“established

and

governed

the

Funds

and

was

incorporated

by

reference into the CBA”); cf. Concourse Vill., Inc. v. Serv.
Emps. 23J N. Health Ben. Fund, No. 11-CV-7824, 2012 WL 5462662,
at *8 (S.D.N.Y. Nov. 8, 2012) (distinguishing cases where the
trust agreement was explicitly incorporated by reference into the
CBA).
Defendants raise an additional argument that the Trust
Agreement to which Plaintiffs cite as the basis for arbitration
is dated March 6, 2012, but that the contributions that were
delinquent occurred between January 1, 2007 and December 31,
2010.

(Defs.’

Reply

Br.

2

&

n.3.)

Thus,

they

dispute

Plaintiffs’ contention that the Trust Agreement and Collection
Policy, which supplied the basis for arbitration, were effective
during the relevant time.

Such questions involve an analysis of

the CBA in conjunction with the Trust Agreement and Collection
Policy.

Where

the

action

involves
10

analysis

of

the

CBA

and

governance

of

an

arbitration

clause,

rather

than

mere

consultation or reference to the CBA, subject matter jurisdiction
is proper under the LMRA.

See Massa Const. Inc. v. Empire State

Carpenters Fringe Benefits Funds, No. 12-CV-6405(JS)(AKT), 2013
WL 4780957, at *4 (E.D.N.Y. Sept. 4, 2013).
Accordingly, Defendants’ motion to dismiss for lack of
subject matter jurisdiction is DENIED.
II. Failure to State a Claim
Defendants

additionally

assert

that

Plaintiffs

have

failed to state a claim because: (1) “The Complaint and Documents
on

which

it

Relies

do

not

Provide

a

Sufficient

Basis

for

Confirming the Collection Award against Pausley” (Defs.’ Br.,
Docket Entry 10-1, at 10); and (2) “The Complaint is Facially
Insufficient with Regard to Allegations that Defendant Bailey
Constructions is the Alter Ego of Pausley” (Defs.’ Br. at 13).
The Court will address each of these arguments in turn.
A. As Against Pausley
Defendants’ argument regarding the insufficiency of the
Complaint as against Pausley primarily reiterates their assertion
that the CBA does not provide for arbitration and that the Funds
are only third-party beneficiaries of the CBA.

In other words,

their argument circles back to the general premises asserted
previously that arbitration is a matter of contract, therefore
requiring

agreement

to

submit
11

to

arbitration,

and

that

the

presumption

of

arbitrability

normally

afforded

to

disputes

arising out of the CBA does not apply to Funds as third-party
beneficiaries.

Defendants go on to maintain that the Collection

Policy effective October 2010 also did not mention arbitration.
(Defs.’ Br. at 12.)

Thus, they conclude that “[w]here, as here,

Plaintiffs seek to confirm an arbitration award that was rendered
without the parties agreeing to use arbitration in the CBA, the
Complaint should be dismissed under Rule 12(b)(6).”

(Defs.’ Br.

at 12-13.)
Defendants do not cite any case law for their final
conclusion.

Notably, “confirmation of an arbitration award is a

summary proceeding that merely makes what is already a final
arbitration award a judgment of the court, and the court must
grant

the

award

corrected.”
100

(2d

omitted).

unless

the

award

is

vacated,

modified,

or

D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95,

Cir.

2006)

(internal

quotation

marks

and

citation

Thus, district courts have limited judicial review.

Katonah Roofing, Inc., 2011 WL 9010113, at *7.

“[I]n evaluating

plaintiff’s petition to confirm the result of the arbitration,
the Court need only ensure that the arbitrator had some grounds
on which to grant the damages spelled out in the Award.”
Local

Union

No.

580

of

Int’l

Ass’n

of

Bridge,

Trs. of

Structural,

Ornamental & Reinforcing Iron Workers Emp. Benefit Funds v. Gen.
Fence Corp., No. 13-CV-6005, 2014 WL 1800428, at *6 (E.D.N.Y. May
12

5, 2014) (internal quotation marks and citation omitted).

“Only

a barely colorable justification for the outcome reached by the
arbitrators is necessary to confirm the award.”

D.H. Blair, 462

F.3d at 110 (internal quotation marks and citation omitted).
The foregoing principles suggest that the Complaint, or
petition, does not need to contain very much in order to confirm
an arbitration award.

Here, Defendants argue that the CBA and

Trust Agreement do not adequately support confirmation.

Such

arguments, however, appear to be reasons why this Court should
not confirm the arbitration award or perhaps even for vacatur;
they cannot appropriately be categorized as a failure to state
claim under Rule 12(b)(6).

While Defendants’ assertions may very

well have merit, they will be addressed as part of the summary
proceedings attendant to actions to confirm an arbitration award
and

will

not

be

addressed

in

this

context.

Accordingly,

Defendants’ motion in this respect is DENIED.
B. As Against Bailey Construction
Finally,
adequately

stated

Defendants
a

claim

assert

to

assert

liability against Bailey Construction.
“Under

New

York

that

law,

two

Plaintiffs

alter

ego

or

have

not

successor

The Court disagrees.
elements

are

required

to

pierce the corporate veil: (1) the parent must exercise complete
domination in respect to the transaction attacked, and (2) such
domination must have been used to commit fraud or wrong against
13

the plaintiff, which proximately caused the plaintiff’s injury.”
Sysco Food Serv. of Metro N.Y., LLC v. Jekyll & Hyde, Inc., No.
08-CV-2958, 2009 WL 4042758, at *2 (S.D.N.Y. Nov. 17, 2009).
“The hallmarks of the alter ego doctrine include ‘whether the two
enterprises
purpose,

have

substantially

operation,

ownership.’”

identical

equipment,

management,

customers,

business

supervision,

and

Truck Drivers Local Union No. 807 v. Reg’l Import &

Export Trucking, Co., 944 F.2d 1037, 1046 (2d Cir. 1991) (quoting
Goodman Piping Products, Inc. v. NLRB, 741 F.2d 10, 11 (2d Cir.
1984) (per curiam)).
Here,

Plaintiffs

allege

that

Terry

Bailey

owns

and

manages both Pausley and Baily Construction, that both businesses
operate out of the same location, and that they share employees,
identical business purposes, operations, office staff, equipment,
customers and/or supervision.

(Compl. ¶¶ 16-19.)

Furthermore,

the Complaint asserts that Mr. Bailey created Bailey Construction
and made relevant transfers in order to evade his obligations
under the CBA.

(Compl. ¶ 20.)

While Defendants assert that the

allegations are conclusory and lack factual support, the Court
finds that Plaintiffs have alleged enough to overcome a motion to
dismiss.

See

Trs.

of

Empire

State

Carpenters

Annuity,

Apprenticeship v. Syracuse Floor Sys., Inc., No. 13-CV-1509, 2013
WL

7390601,

at

*5

(E.D.N.Y.

Dec.

16,

2013)

(noting

that

allegations, even where lean, were sufficient to state an alter
14

ego claim (citation omitted)); Trs. of the Hollow Metal Trust
Fund v. FHA Firedoor Corp., No. 12-CV-7069, 2013 WL 1809673, at
*4 (S.D.N.Y. Apr. 30, 2013) (denying motion to dismiss where
plaintiffs “summarily pleaded each of” the factors of the alter
ego test); Network Enters., Inc. v. APBA Offshore Prods., Inc.,
No. 01-CV-11765, 2003 WL 124521, at *3 (S.D.N.Y. Jan. 15, 2003)
(holding

that

plaintiff’s

alter

ego

allegations

“while

understandably sparse, are sufficient to survive a motion to
dismiss”).

Essentially,

the

Complaint

asserts

that

Bailey

Corporation is another iteration of Pausley, designed simply to
avoid

its

obligations.

Plaintiffs’

allegations,

though

they

track the relevant factors, are not simply legal conclusions.
See Trs. of the Mosaic & Terrazzo Welfare Pension, Annuity &
Vacation Funds v. Cont’l Floors, Inc., No. 13-CV-1739, 2013 WL
5637492, at *6 (E.D.N.Y. Oct. 15, 2013).
This does not the end of the inquiry, however.

As a

general matter, “an action for confirmation is not the proper
time for a District Court to ‘pierce the corporate veil’” given
the complex and fact-intensive inquiry involved.

Orion Shipping

& Trading Co. v. E. States Petroleum Corp. of Panama, S.A., 312
F.2d 299, 301 (2d Cir. 1963); see also Productos Mercantiles E
Industriales, S.A. v. Faberge, USA, Inc., 23 F.3d 41, 47 (2d Cir.
1994).
when

Thus, courts typically consider alter ego claims only
doing

so

would

not

involve
15

extensive

fact-finding

or

considerable delay. 2

See Productos Mercantiles E Industriales,

S.A., 23 F.3d at 47; Daebo Int’l Shipping Co., Ltd. v. Americas
Bulk Transport (BVI) Ltd., No. 12-CV-4750, 2013 WL 2149591, at *4
(S.D.N.Y. May 17, 2013).
However, courts have also recognized an exception in
the context of labor disputes.

See Gvozenovic v. United Air

Lines, Inc., 933 F.2d 1100, 1105 (2d Cir. 1991).

Thus, where the

arbitration arose out of a collective bargaining relationship,
consideration of an alter ego theory is appropriate.

See Matter

of Arbitration Between Bowen & 39 Broadway Assocs., No. 91-CV4673, 1992 WL 73480, at *8 (S.D.N.Y. Apr. 2, 1992) (“While the
issue is raised in the context of a motion to confirm, the Orion
rule against considering such matters is not applicable because
the underlying arbitration arose out of a collective bargaining
relationship.”).

Accordingly, courts in contexts similar to the

case at hand have seemed to allow some level of discovery to
determine alter ego.

See, e.g., Trs. of N.Y. City Dist. Council

of Carpenters Pension Fund v. Integrated Structures Corp., No.
11-CV-8975,

2013

WL

5996356,

at

*5

(S.D.N.Y.

Nov.

12,

2013)

(deciding alter ego status in a case involving confirmation of an
arbitration award for unpaid contributions where the record made
2

Here, although Defendants argue that discovery will be
necessary, they raise this argument for the first time in their
reply brief and, in any event, do not explain why this case would
involve a particularly complex factual inquiry or extensive
litigation.
16

such a determination clear); Int’l Broth. of Teamsters, Local No.
264 v. Nason’s Delivery, Inc., No. 11-CV-0186, 2011 WL 3862322,
at

*7

(W.D.N.Y.

plaintiffs’

Aug.

petition

31,
to

2011)

confirm

(reserving
an

judgment

arbitration

award

on

the

until

defendants could conduct discovery on certain issues, including
alter ego liability).
As

such,

Defendants’

motion

to

dismiss

Plaintiffs’

alter ego claim against Bailey Construction is DENIED and the
parties

may

expeditiously

conduct

discovery

to

the

extent

necessary.
CONCLUSION
For

the

foregoing

reasons,

Defendants’

motion

to

dismiss is DENIED.

SO ORDERED.

/s/ JOANNA SEYBERT____________
Joanna Seybert, U.S.D.J.

Dated:

June 16, 2014
Central Islip, New York

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