United States District Court, D. Nevada
BOARD OF TRUSTEES OF THE PAINTERS AND FLOORCOVERERS JOINT COMMITTEE, et al., Plaintiffs,
SUPER STRUCTURES INC., et al., Defendants.
M Navarro, Chief Judge.
before the Court is the Motion to Dismiss, (ECF No. 5), filed
by Super Structures, Inc. (“SS1”), Super
Structures Inc. (“SS2”), Tracy Reynolds, Robert
Reynolds, and Western National Mutual Insurance Company
(collectively “Defendants”). Plaintiffs Board of
Trustees of the Painters and Floorcoverers Joint Committee,
et al. (collectively “Plaintiffs”),
filed a Response, (ECF No. 12), and Defendants filed a Reply,
(ECF No. 18).
reasons discussed herein, Defendants' Motion to Dismiss
case arises from Defendants' alleged creation of a sham
company in order to avoid payment obligations under the
Employee Retirement Income Security Act of 1974, 29 U.S.C.
§§ 1001, et seq. (“ERISA”).
Defendant Super Structures, Inc. (“SS1”) is a
now-defunct Nevada corporation, formerly owned by Defendants
Tracey Reynolds and Robert Reynolds. (Compl. ¶¶
9-11, ECF No. 1). Defendant Super Structures Inc.
(“SS2), which is presently owned by the Reynolds',
is a Nevada corporation that came into existence
approximately three years after SS1 closed its operations.
(Id. ¶¶ 34, 40). Plaintiffs are several
construction-related, employee-benefit trusts and
associations who bring this action seeking to hold SS2, and
the Reynolds', liable for SS1's alleged unpaid ERISA
contributions. (Id. ¶¶ 5-7).
November 2005, SS1 signed a collective bargaining agreement
(the “CBA”) with the International Union of
Painters and Allied Trades, District Council 15, Painters
Local 159 (the “Union”), and the Painting and
Decorating Contractors of America, Southern Nevada Chapter
(“PDCA”). (Id. ¶ 18). The CBA
states that its provisions remain in effect from July 1,
2004, through June 30, 2007. (Id.) A clause of the
CBA (the “Duration Clause”) provides that the CBA
automatically renews annually unless terminated by either
party. (Id. ¶ 20). Termination of the CBA
requires written notice of termination, which must be
“served by either party upon the other no less tha[n]
sixty (60) and not more than ninety (90) days prior to
6-30-2007 or June 30 of any subsequent year.”
(Id.). In January 2007, SS1 assigned its bargaining
rights to PDCA, authorizing it to represent SS1 in labor
negotiations with the Union under the CBA. (Id.
¶ 22). Plaintiffs allege that SS1 never revoked this
assignment, which is expressly incorporated into the CBA.
(Id. ¶¶ 21, 23).
the terms of the CBA and incorporated agreements, SS1 was
obligated to submit written reports stating the identities
and hours worked of employees performing labor covered by the
CBA. (Id. ¶ 27). Plaintiffs are intended
beneficiaries with respect to SS 1 's reporting and
contribution obligations. (Id. ¶ 29).
September 2, 2009, SS 1 sent a letter to the Union advising
that it would be winding down its business and “closing
its doors on or about December 31, 2009.” (Id.
¶ 34). The letter further states, “as we have no
trade employees, we will not be renewing the Bond expiring
November 29, 2009.” (Id.).
January 2009, in response to a remittance inquiry by a
third-party administrator of the trust funds, SS1 stated it
was out of business and requested deactivation of the
account. (Id. ¶ 35). In August 2009, SS1
contacted the Nevada State Contractors Board
(“Contractors Board”) to request that its
licenses be placed on inactive status, which the Contractors
Board granted, effective August 14, 2009. (Id.
¶ 36). SS1 allegedly continued to renew its corporate
registration with the Secretary of State by filing Annual
Lists in November 2009 and 2010, identifying 3395 S. Jones,
#279, Las Vegas 89146 as the company's address (the
“Jones Address”). (Id. ¶ 37). In
June 2011, SS1 surrendered its contractor's license to
the Contractors Board and filed a Certificate of Dissolution
in October 2011. (Id. ¶¶ 38-39). Both of
these filings identify the Jones Address as SS1's
operative address. (Id.).
27, 2013, Tracey Reynolds filed Articles of Incorporation
with the Nevada Secretary of State to establish an entity
called Super Structures Inc.
(“SS2”). (Id. ¶ 40). SS2's
address was represented to be the Jones Address, and Tracey
Reynolds was listed as President and Director, and non-party
Carol Downing (“Downing”) as Secretary and
Director. (Id. ¶ 41). SS2 applied to the
Contractors Board for general building, painting and
decorating, and wrecking licenses. (Id. ¶ 43).
The application included a request for waiver of tests
required to obtain these licenses based upon SS1's prior
licenses. (Id.). The Contractors Board granted
SS2's requested licenses on July 26, 2013. (Id.
to Plaintiffs, since its inception, SS2 has interchangeably
identified itself as “Super Structures, ”
“Super Structures Inc.” and “Super
Structure, Inc, ” and consistently used the Jones
Address on its filings with the Nevada Secretary of State.
(Id.). In November 2012, Robert Reynolds replaced
Downing as Secretary of SS2, leaving Robert and Tracey
Reynolds as SS2's only corporate officers. (Id.
allege that since August 1, 2009, SS1 has not submitted any
remittance reports or tendered payment to Plaintiffs for
their work. (Id. ¶ 49). In April 2018,
Plaintiffs sent Defendants a letter stating an intent to
conduct a payroll compliance review of Defendants'
records for the period of April 1, 2012, through March 31,
2018. (Id. ¶ 51). SS2 declined Plaintiffs'
request, stating that SS2 is not a signatory to the CBA.
(Id. ¶ 52).
were able to obtain certified payroll records
(“CPRs”) for two projects for which Defendants
performed. (Id. ¶ 55). Plaintiffs' auditor
confirmed that Defendants' employees performed labor
covered by the CBA on these projects, but Defendants did not
correspondingly submit reports or make payments to Plaintiffs
as required. (Id. ¶ 59). The CPRs additionally
show at least one common employee between the SS1 and SS2.
(Id. ¶ 57).
filed their Complaint on July 24, 2018, bringing the
following causes of action: (1) breach of contract against
all Defendants; (2) violation of ERISA against all
Defendants; (3) personal liability against Tracey and Robert
Reynolds; (4) demand for relief on bond against Western
National Mutual Insurance Company; and ...