United States District Court, N.D. Illinois, Eastern Division
CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, and ARTHUR H. BUNTE, JR., as Trustee, Plaintiffs,
B&M MARINE CONSTRUCTION, INC., DIVERSIFIED VENTURES, INC., ROGER WOONTON, ROBERT KENNEDY, GERARD PERRY, and JAMES BRYANT, Defendants.
MEMORANDUM OPINION AND ORDER
Robert Blakey United States District Judge.
Central States, Southeast and Southwest Areas Pension Fund
and fund trustee Arthur Bunte, Jr., (Plaintiffs, or the Fund)
bring this action in connection with an employer's
withdrawal from a multiemployer pension plan. . Such
withdrawals incur liability under the Employee Retirement
Income Security Act of 1974 (ERISA), as amended by the
Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), 29
USC § 1001 et seq. Plaintiffs allege the
following claims: (1) ERISA withdrawal liability for
Defendant Diversified Ventures, Inc. (Count I); (2) state-law
claims for fraudulent transfers against individual defendants
Roger Woonton, Robert Kennedy, Gerard Perry, and James Bryant
(Count II); (3) a claim under ERISA that defendants
Diversified Ventures, Woonton, Kennedy, Perry, and Bryant
made transfers to evade or avoid ERISA withdrawal liability
(Count III); and (4) successor liability against B&M
Marine Construction, Inc. (Count IV). 
this Court are motions to dismiss or transfer venue brought
by B&M Marine Construction  and Robert Kennedy .
For the reasons explained below, Defendants' motions are
Plaintiff pension fund is a multiemployer pension plan within
the meaning of ERISA sections 3(37) and 4001(a)(3). 
¶ 5; 29 USC §§ 1002(37), 1301(a)(3). The
Fund's trustees administer the Fund in Rosemont,
Illinois,  ¶ 6, within this judicial district.
Plaintiffs' suit results from the withdrawal of a Florida
corporation, Powermix Industries, from the Fund in 2012.
See Id. ¶¶ 17, 24; Cent. States, Se.
& Sw. Areas Pension Fund, et al. v. Powermix Indus.,
Inc., No. 13-cv-6250 (N.D. Ill.Dec. 20, 2013) (Judgment
I); Complaint ¶¶ 11-12, Judgment I, No. 13-cv-6250.
December 2013, Plaintiffs obtained a judgment against
Powermix Industries for its “complete withdrawal”
from the Fund on September 9, 2012. See Judgment I;
Complaint ¶¶ 11-12, Judgment I, No. 13-cv-6250. The
judgment awarded Plaintiffs $1, 179, 689.12 in ERISA
withdrawal liability. See Judgment I.
November 2014, Plaintiffs obtained a second judgment against
Pile & Marine Construction and BK Marine Construction,
two Florida corporations under common control with Powermix
Industries, and thus jointly and severally liable for
Powermix's withdrawal liability. See  ¶
19; Cent. States, Se. & Sw. Areas Pension Fund, et
al. v. Pile & Marine Constr., Inc., et al., No.
14-cv-6174 (N.D. Ill. Nov. 14, 2014) (Judgment II). This
judgment entitled Plaintiffs to recover Powermix's
withdrawal liability from Pile & Marine and BK Marine.
the three Florida corporations against which Plaintiffs
obtained judgments-Powermix Industries, BK Marine, and Pile
& Marine-have made payments toward the withdrawal
liability.  ¶ 20.
their present suit, Plaintiffs seek to recover the unpaid
withdrawal liability from two additional Florida corporations
they allege to be sufficiently related to Powermix Industries
to share its withdrawal liability: Diversified Ventures and
B&M Marine Construction. Plaintiffs also bring claims
against individual defendants for participating in
transactions allegedly intended to help Powermix avoid paying
its withdrawal liability. .
allege that, when Powermix Industries withdrew from the Fund
in September 2012, Diversified Ventures was part of the group
of commonly controlled businesses jointly and severally
liable with Powermix. Id. ¶¶ 21-24. Thus,
Diversified, Pile & Marine, BK Marine, and Powermix
Industries constitute a single employer under ERISA and are
jointly and severally liable for Powermix Industries'
withdrawal liability. See Id. ¶¶ 24, 47.
Plaintiffs call these four companies the “Powermix
Controlled Group.” Id.
2012-three months before Powermix Industries withdrew from
the Fund-Plaintiffs allege that Defendant B&M Marine
Construction acquired the “assets and operations”
of Powermix Industries, Pile & Marine, and BK Marine.
Id. ¶ 25. B&M also acquired construction
equipment from the Powermix Controlled Group in December 2012
and February 2013. Id. ¶¶ 26, 38.
Plaintiff alleges that B&M conducts “the same
marine construction operations” previously conducted by
the Powermix Controlled Group; operates out of the same
commercial property the Group used in Deerfield Beach,
Florida; and employs many workers once employed by the Group.
Id. ¶¶ 27-29. B&M's four
shareholders are the adult sons of two former shareholders of
the Powermix Controlled Group who held 50 percent of the
Group's shares. See Id. ¶¶ 21-23,
30-32. Finally, two of B&M's shareholders-
representing 50 percent of its shares at one time-held
overlapping positions as officers in B&M and the Powermix
Controlled Group, including at the time of the February 2013
purchase of equipment from the Group. Id.
Powermix Industries withdrew from the Fund in 2012, Defendant
Robert Kennedy owned 25 percent of Pile & Marine and 25
percent of Diversified Ventures. Id. ¶¶
21-22. At the time, Powermix Industries and BK Marine were
wholly-owned subsidiaries of Pile & Marine. Id.
¶ 23. Plaintiffs further allege that Kennedy was a
shareholder of Diversified Ventures during the December 2012
and February 2013 sales of equipment from the Powermix
Controlled Group-including Diversified-to B&M.
Id. ¶¶ 51-54. The proceeds of these sales
went to Diversified Ventures “and ultimately to its
shareholders, ” including Kennedy. Id.
¶¶ 38, 42, 53-54. Plaintiffs also allege that the
Group received a demand for Powermix's withdrawal
liability in January 2013, shortly before the February 2013
transfer; that the construction equipment transferred to
B&M represented “the essential assets” of the
Group's business; and that the transfers began shortly
after the Group incurred its withdrawal liability.
Id. ¶¶ 35, 54-58. Based upon these events,
Plaintiffs allege that Defendant Kennedy participated in
transferring equipment to B&M “with actual intent
to hinder, delay, or defraud” the Fund, and the
principal purpose of evading or avoiding the Group's
withdrawal liability. Id. ¶¶ 62-64.
initiated this suit in March 2016. . In their original
complaint, Plaintiffs named B&M as a defendant based upon
its alleged successor liability for Powermix's withdrawal
liability. Id. In June 2017, Plaintiffs amended the
complaint to add the present defendants and now bring claims
for withdrawal liability (Count I), fraudulent transfers
(Count II), evading or avoiding ERISA liability (Count III),
and successor liability as to B&M (Count IV). .
this Court are motions to dismiss or transfer venue brought
by B&M Marine Construction  and Kennedy .
Defendants move to dismiss for lack of personal jurisdiction
and improper venue, on the grounds that the ERISA
jurisdiction and venue provisions do not apply to
Plaintiffs' claims, which are otherwise not properly
brought in this district. In the alternative, Defendants seek
to transfer venue to the Southern District of Florida.
Kennedy also moves to dismiss Count III for failing to state