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Langone v. Son, Inc.

United States District Court, D. Massachusetts

June 15, 2015

CHARLES LANGONE, as FUND MANAGER of the NEW ENGLAND TEAMSTERS AND TRUCKING INDUSTRY PENSION FUND, Plaintiff,
v.
SON, INC., JAMES F. HUDSON, and ALLISON PALMER STOCKAMORE and ELIZABETH SHELBY HUDSON as Co-Personal Representatives of the Estate of J. MORGAN HUDSON, Deceased, Defendants.

ORDER ON REPORT AND RECOMMENDATION

GEORGE A. O'TOOLE, Jr., District Judge.

The magistrate judge to whom this matter was referred has recommended that the defendants James F. Hudson and J. Morgan Hudson's motion to dismiss (dkt. no. 23) be granted for lack of personal jurisdiction and that the plaintiff's motion for leave to amend (dkt. no. 27) be denied. The plaintiff filed an untimely objection to the Report and Recommendation ("R&R"). The defendants moved to strike the objection to the R&R, and the plaintiff opposed that motion.

In his objection, the plaintiff asks this Court to review "new evidence" supporting personal jurisdiction, to allow an additional amendment of the complaint to include new ERISA counts, and to consider transferring the case under 28 U.S.C. § 1631. None of these requests is an actual objection to the magistrate's specific findings and recommendations. Instead, they are a general objection to dismissal of the claims. The plaintiff's "new evidence" objection is in fact a new "argument which could have been, but inexplicably was not, presented to the magistrate in the first instance." Borden v. Sec'y of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987) (internal quotation omitted). An objection to an R&R is not the proper venue to present new legal arguments. Paterson-Leicht Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988); Borden, 836 F.2d at 6 ("Parties must take before the magistrate, not only their best shot' but all of their shots.").

The plaintiff's second objection likewise does not identify an error in the magistrate's analysis but instead seeks leave to amend the complaint yet again. The plaintiff has already presented four iterations of his complaint, none of which has been free from jurisdictional defect; there is really not a good reason to give him a fifth attempt.

Finally, I decline to transfer this case pursuant to 28 U.S.C. § 1631 because, while the matter is not free from doubt, I have concluded that transfer is proper under § 1631 only where subject matter jurisdiction, not personal jurisdiction, is lacking. Fed. Home Loan Bank of Boston v. Ally Fin., Inc., No. 11-cv-10952-GAO, 2014 WL 4964506, at *4 (D. Mass. Sept. 30, 2014). The plaintiff, of course, may refile his case against the Hudson defendants in the District of New Jersey. Even were I to order a transfer to that district, it would be appropriate to sever the claims and parties beforehand. See Fed.R.Civ.P. 21; see also Acevedo-Garcia v. Monroig, 351 F.3d 547, 558 (1st Cir. 2003). There is not sufficient overlap between the claims against Son, Inc. that these separate actions would result in piecemeal litigation. The claims would be adjudicated on separate facts if this case were to be tried here in its present architecture.

Accordingly, having carefully reviewed the pleadings, the parties' submissions, the R&R, the plaintiff's objection, and the motion to strike the objection and accompanying opposition, I ADOPT the magistrate judge's recommendation in its entirety. The defendants' motion to dismiss (dkt. no. 23) is GRANTED. The plaintiff's motion for leave to amend (dkt. no. 27) is DENIED. The defendants' motion to strike the plaintiff's objection to the R&R (dkt. no. 45) is DENIED in the sense only that the objection remains a part of the record.

The claims are dismissed as against James F. Hudson and against Allison Palmer Stockamore and Elizabeth Shelby Hudson, as co-personal representatives of the Estate of J. Morgan Hudson, for lack of personal jurisdiction over those parties. This action may proceed against the remaining defendant, Son, Inc.

It is SO ORDERED.

REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS (#23) AND PLAINTIFF'S MOTION FOR LEAVE TO AMEND (#27)

Plaintiff Charles Langone, the manager of a pension fund, brought this Employee Retirement Income Security Act ("ERISA") action to enforce an arbitrator's decision that Defendant Son, Inc., is jointly and severally liable with others for amounts due because of a subscriber's withdrawal from the fund. Langone also sued Defendants James F. Hudson and J. Morgan Hudson, Son, Inc.'s shareholders, ("the Hudson defendants") under the New Jersey Uniform Fraudulent Transfer Act, to recover proceeds from sales of Son Inc.'s property. The Hudson defendants moved for dismissal of the second amended complaint under Rules 12(b)(2) and (b)(6) of the Federal Rules of Civil Procedure. Langone responded in opposition to their motion and, in the alternative, sought leave to amend his complaint. For the reasons that follow, I recommend that the Motion to Dismiss (#23) be ALLOWED, for lack of personal jurisdiction, and that the Motion for Leave to Amend (#27) be DENIED as futile.

I. BACKGROUND

Charles Langone is the Fund Manager for the New England Teamsters and Trucking Industry Pension Fund. (Second Amended Complaint, #17 at 1.) Under ERISA, the statute that governs such funds, the Pension Fund is a "multi-employer plan."[1] See 29 U.S.C. § 1002. The fund's principal place of business is in Burlington, Massachusetts, and it is administered from that location. (#17 at 1.)

Bridgeport Steel Company was an employer that was obligated to make contributions on behalf of certain employees to the Pension Fund. ( Id. at 2.) In June 2007, Bridgeport ceased to have an obligation to contribute to the fund. ( Id. at 2-3.) The fund notified Bridgeport that, due to its withdrawal, it owed $234, 713.00, representing its "proportionate share of the Pension Fund's unfunded vested benefit liability." ( Id. at 3.) Bridgeport failed to pay. ( Id. ) The fund then filed suit in this court, Langone v. Bridgeport Steel, et. al., 08-cv-10420-NMG, against Bridgeport and also several other companies that were determined to be entities under common control with Bridgeport, ("the judgment defendants") as defined by ERISA regulations. ( Id. ) A Motion for Summary Judgment was granted in favor of the Pension Fund and on November 29, 2010, the fund was awarded a judgment in the amount of $373, 906.60 against the judgment defendants, a sum that included the original withdrawal amount as well as interest, damages, fees and costs. ( Id. ) To date, none of the judgment defendants has paid anything.

On September 14, 2012, Langone filed this lawsuit against Son, Inc., a New Jersey Corporation, alleging that the company is under "common control" along with the judgment defendants and thus is also liable for the judgment. (Original Complaint, #1 at 3-4.) In the complaint, Langone stated that he had recently learned that James Hudson and J. Morgan Hudson, who were officers, directors, and the sole shareholders of judgment defendant Grammar, Dempsey, and Hudson, Inc., were also officers, directors, and the sole shareholders of Son, Inc. ( Id. at 2-3.) The Hudson defendants were residents of New Jersey.

On October 10, 2012, Langone filed an amended complaint, joining the Hudsons as defendants. (First Amended Complaint, #5 at 2, 4-6.) Langone claims that, in December 2008 and July 2010, Son, Inc., sold property that represented most or all of its assets in order to avoid its responsibilities to the fund, in violation of the New Jersey Uniform Fraudulent Transfer Act. (#17 at 5-6.) The proceeds from the sales went to the two Hudson defendants. ( Id.; Affidavit of Melissa Brennan, #28 at 1-2.) Langone asks that the Court ...


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