The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiffs, trustees of the Laundry, Dry Cleaning and Dye
House Workers' International Union Pension Fund and the Local
46 Welfare Fund ("the Trustees"), have brought this action to
recover contributions required by a collective bargaining
agreement and multi-employer plan under the Employee
Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et
seq. Jurisdiction is asserted pursuant to
29 U.S.C. § 1132(e)(1) and (e)(2). Presently before the Court are the
motions to dismiss of defendants Hi Grade Cleaners, Inc. ("Hi
Grade"), Scientific Dry Cleaners, Inc. ("SDC") and Ronald
Harris ("Harris"). For the reasons set forth below, the motions
of Hi Grade and SDC are granted, and Harris' motion is denied.
The complaint essentially alleges that Harris has been the
sole shareholder, director and president of a series of
corporations which are obligated to make payments to the
pension and welfare funds. The Trustees claim that these
entities are virtually identical except in name, and that
Harris has changed the name of his business periodically in an
attempt to defraud his creditors. The Trustees also assert
that there is such a unity of interest, both among the
different corporations and between the corporations and
Harris, that Harris should be held personally liable for the
payments.
Each defendant offers different reasons why he or it should
be dismissed from this action. When considering the motions to
dismiss, the Court must view
the complaint's allegations in the light most favorable to the
plaintiffs. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct.
1683, 1686, 40 L.Ed.2d 90 (1974); Conley v. Gibson,
355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Unless the
plaintiffs cannot prove any set of facts in support of their
claim that would entitle them to relief, the complaint should
not be dismissed. Conley, 355 U.S. at 45-46, 78 S.Ct. at 102.
The Trustees allege in their complaint that the defendants
are delinquent in their contributions to the pension and
welfare funds for the period from October 1, 1983 through
March 30, 1984. Hi Grade argues that it cannot be held liable
for payments for this period because it had been dissolved in
1982. This argument is persuasive.
The Trustees do not seriously dispute Hi Grade's contentions
that the corporation discontinued its business operations on
March 31, 1982, and was dissolved by the Illinois Secretary of
State on December 1, 1982. Instead, the Trustees claim that
Ill.Rev.Stat. ch. 32, § 157.94, a "survival statute" which
provides for suits against dissolved corporations, allows them
to proceed against Hi Grade in this case.*fn1 However, the
Illinois statute permits suits only for causes of action which
accrued before the corporation was dissolved, Blankenship v.
Demmler Manufacturing Co., 89 Ill. App.3d 569, 44 Ill.Dec. 787,
790-91, 411 N.E.2d 1153, 1156-57 (1st Dist. 1980). In this
case, the Trustees' cause of action did not accrue until late
1983, long after Hi Grade's dissolution. Thus, the Illinois
survival statute is inapplicable to this situation, and Hi
Grade's motion to dismiss is granted.*fn2
SDC argues first that the Trustees have failed to state a
claim against it because SDC was not a party to any collective
bargaining agreement with the Trustees and because the
allegations concerning the relationship between Hi Grade and
SDC are "vague and unclear." However, the Trustees
have alleged that on or about April 1, 1982, SDC consented to
be bound by their agreement with Hi Grade, that SDC made some
payments according to the agreement, and that SDC received
benefits under the agreement. In addition to alleging that SDC
expressly assumed Hi Grade's obligations, the Trustees have
also alleged that the substantial identity of the two
corporations' ownership, management, business operations and
work force either warrants treating the corporations as the
same legal entity or establishes SDC as a successor corporation
obligated by the terms of the collective bargaining agreement.
These allegations are certainly sufficient to withstand SDC's
motion to dismiss.
However, SDC also claims that the Trustees' complaint should
be dismissed because SDC filed a petition in bankruptcy on
August 1, 1984. It is clear that under 11 U.S.C. § 362(a)(1),
the petition operates as a stay of this action against
SDC.*fn3 Such a
stay, however, does not apply to the claims against SDC's
nonbankrupt co-defendants. See, e.g., Almy v. Terrace Land
Development, Ltd., 32 B.R. 390, 391 (N.D.Cal. 1983); Royal
Truck & Trailer, Inc. v. Armadora Maritima Salvadorena, S.A. de
C.V., 10 B.R. 488, 490-91 (N.D.Ill. 1981). Thus, the suit
should not be dismissed completely. SDC will be dismissed from
this action for the present time, but the Trustees may
reinstate their claims against SDC when the bankruptcy
proceedings are concluded. Accordingly, SDC's motion to dismiss
is granted without prejudice.
The Trustees have also named as a defendant Ronald Harris,
"individually and doing business as Scientific Suede & Leather
Cleaners." Harris has stated that he is not doing business as
Scientific Suede & Leather Cleaners. Rather, he is now
president and general manager of an Illinois corporation named
Scientific Leather, Suede & Fur, Inc. ("SLSF"), incorporated
on November 10, 1983. The Trustees respond that they will
request leave from the Court to join SLSF as a party defendant
and "will plead successorship and disregard of corporate
formalities against that company." The Court hereby grants the
Trustees leave to file an amended complaint which adds SLSF as
a party and is otherwise consistent with this opinion.
Harris contends that the claims against him and his business
fail to satisfy the requirement of Fed.R.Civ.P. 9(b) that
"[i]n all averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with
particularity." However, Rule 9(b) must be read together with
the liberal notice pleading standard of Rule 8, which only
requires a short, plain and concise statement of the claims.
Tomera v. Galt, 511 F.2d 504, 508-09 (7th Cir. 1975). The
Seventh Circuit has stated that when the two rules are read
together, a complaint is sufficient if it alleges "a brief
sketch of how the fraudulent scheme operated, when and where it
occurred, and the participants." Id. at 509.
Judged under this standard, the complaint provides the
defendants with the notice to which they are entitled. Taking
the Trustees' allegations as true, it is possible that they
may ultimately prove a fraudulent intent underlying the series
of transfers of the defendants' business from one corporation
to another. The complaint leaves no doubt as to the events
that the Trustees contend were fraudulent, when these events
occurred and the participants in the events. Further ...