Wisconsin Masons Health Care Fund et al v. Sid's Sealants, LLC et al

Filing 8

ORDER denying 5 Motion to Dismiss by Sidney N. Arthur, Sid's Sealants, LLC. Signed by District Judge James D. Peterson on 2/27/2017. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

WISCONSIN MASONS HEALTH CARE FUND,
WISCONSIN MASONS APPRENTICESHIP &
TRAINING FUND, GARY BURNS,
BRICKLAYERS & TROWEL TRADES
INTERNATIONAL PENSION FUND,
INTERNATIONAL MASONRY INSTITUTE,
BRICKLAYERS & ALLIED CRAFTWORKERS
DISTRICT COUNCIL OF WISCONSIN,
WISCONSIN LABORERS HEALTH FUND,
BUILDING & PUBLIC WORKS LABORERS
VACATION FUND, WISCONSIN LABORERS
APPRENTICESHIP & TRAINING FUND,
JOHN J. SCHMITT, WISCONSIN LABORERSEMPLOYERS COOPERATION AND EDUCATION
TRUST FUND, WISCONSIN LABORERS DISTRICT
COUNCIL, BUILDING TRADES UNITED PENSION
TRUST FUND, SCOTT J. REDMAN, and
INDUSTRY ADVANCEMENT
PROGRAM/CONTRACT ADMINISTRATION,

ORDER
17-cv-28-jdp

Plaintiffs,
v.
SID’S SEALANTS, LLC, and SIDNEY N. ARTHUR,
Defendant.
Plaintiffs filed this ERISA and LMRA action for unpaid contributions against
defendants Sid’s Sealants, LLC, and Sidney N. Arthur on January 12, 2017. Dkt. 1.
Defendants answered on February 7, 2017. Dkt. 5. Defendants’ responsive pleading contains
their answer, affirmative defenses, demand for an accounting, counterclaims, and a motion to
dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule
of Civil Procedure 12(b)(6). Id.

Defendants’ combined responsive pleading is not inconsistent with the Federal Rules
of Civil Procedure, but combining the answer with a motion to dismiss makes it harder to
manage the docket. Accordingly, the court’s quality control team sent defense counsel an
email, explaining that motions to dismiss “must be filed using the docketing event that is
titled Motion to Dismiss,” which will establish a pending motion on the docket and prompt a
briefing schedule. Almost three weeks have passed since the quality control team sent the
email, and defense counsel has not amended or supplemented its filing, or responded to the
email at all. So the docket does not show a pending motion, and plaintiffs have,
understandably, not responded to the motion. Ordinarily, I would order defendants to file
their motion as a separate docket entry, so that plaintiffs would know to respond to it. But I
have reviewed the motion, and I will deny it summarily.
Defendants dispute plaintiffs’ allegation that the Bricklayers Union plaintiffs entered
into a collective bargaining agreement with Sid’s Sealants, LLC: defendants contend that
plaintiffs have not provided “any reasonable factual basis establishing within the context of
the complaint the existence of an actual collective bargaining agreement.” Dkt. 5, ¶ 71. But
plaintiffs have pleaded the existence of a collective bargaining agreement; defendants have not
identified a “pleading” problem. Rather, defendants attempt to rebut the allegation by
adducing facts outside of the complaint. See id. ¶ 72 (“The Bricklayers Union Plaintiffs knew
that the Defendant Sid Arthur personally changed his sole proprietorship business to a
limited liability company in 2005 and at no time did the Bricklayers Union Plaintiffs and
Sid’s Sealants LLC enter into or execute any form of collective bargaining agreement.”). This
type of argument does not provide a basis to dismiss a complaint under Rule 12(b)(6); it is

2

more appropriately raised in a motion for summary judgment, which gives both sides the
opportunity to develop a factual record.

ORDER
IT IS ORDERED that defendants Sid’s Sealants, LLC, and Sidney N. Arthur’s motion
to dismiss, Dkt. 5, is DENIED.
Entered February 27, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

3