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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

CASE NO. 1:20-cv-22667-RNS 

FONTAINEBLEAU FLORIDA HOTEL, LLC, 

Plaintiff, 

v. 

THE SOUTH FLORIDA HOTEL AND 

CULINARY EMPLOYEES WELFARE FUND and 

UNITE HERE, LOCAL 355, 

Defendants. 

WENDI WALSH, MICHAEL J. D’ANGELO, 

JEREMY CRUZ HAICKEN and GEORGE 

GREENE as Trustees of THE SOUTH FLORIDA 

HOTEL AND CULINARY EMPLOYEES 

WELFARE FUND, 

Counter Plaintiffs, 

v. 

FONTAINEBLEAU FLORIDA HOTEL, LLC, 

Counter Defendant. 

FONTAINEBLEAU FLORIDA HOTEL, LLC’S ANSWER AND AFFIRMATIVE 

DEFENSES TO DEFENDANT/COUNTER PLAINTIFFS THE SOUTH FLORIDA 

HOTEL AND CULINARY EMPLOYEES WELFARE FUND TRUSTEE’S 

COUNTERCLAIM 

NOW COMES Counter Defendant Fontainebleau Florida Hotel, LLC (“Fontainebleau”), 

by and through its undersigned counsel, and hereby answers the Counterclaim filed by Counter 

Plaintiffs WENDI WALSH, MICHAEL J. D’ANGELO, JEREMY CRUZ HAICKEN and 

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GEORGE GREENE, as Trustees of the SOUTH FLORIDA HOTEL AND CULINARY 

EMPLOYEES WELFARE FUND (collectively, the “Trustees”) as follows: 

I. NATURE OF ACTION, JURISDICTION, AND VENUE 

1. Admitted that Trustees have asserted a claim for alleged delinquent contributions 

under Sections 502, 515 of ERISA. Fontainebleau denies Trustees’ claims for relief. 

2. Denied as to breach. Admitted as to venue. Otherwise, denied. 

II. PARTIES 

3. Fontainebleau is without sufficient information or knowledge to admit or deny the 

allegations in Paragraph 3 and, therefore, denies the same. 

4. Admitted. 

5. Admitted.

6. Admitted. 

III. CAUSE OF ACTION 

7. Admitted that Fontainebleau was a signatory to a collective bargaining agreement 

(CBA) with UNITE HERE Local 355, the terms and obligations of which speak for themselves. 

Otherwise, denied. 

8. Admitted. 

9. Admitted. 

10. Admitted that Fontainebleau was a signatory to the CBA, the terms and obligations 

of which speak for themselves. Otherwise, denied. 

11. Denied. 

12. Denied. 

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13. Fontainebleau is without sufficient information or knowledge to admit or deny the 

allegations in Paragraph 13 and, therefore, denies the same. 

14. Denied. 

PRAYER FOR RELIEF 

In response to the Trustees’ request for relief, Fontainebleau denies that the Trustees are 

entitled to any of the listed items of relief in their Counterclaim, and prays that the Trustees take 

nothing by way of their Counterclaim. Fontainebleau requests reimbursement of its attorneys’ 

fees and costs pursuant to ERISA, 29 U.S.C. §1132(g)(1), and all other just and proper relief. 

AFFIRMATIVE DEFENSES

Fontainebleau asserts the following defenses, each as a separate and distinct defense to the 

Trustees’ alleged causes of action, as well as to their entire Counterclaim. Fontainebleau does not 

assume the burden of any defense asserted that is adjudged not to be an affirmative defense. 

Fontainebleau reserves the right to assert such other and further defenses of which it may become 

aware through discovery or otherwise. 

FIRST DEFENSE 

The Counterclaim, and each and every purported claim for relief therein, fails to state a 

claim for which relief can be granted. 

SECOND DEFENSE 

Fountainebleau’s obligations to contribute to the Fund are governed by the CBA, and 

relevant provisions of the Fund’s Trust Agreement, Plan documents, and amendments thereto. The 

governing documents do not require Fontainebleau to contribute to the Fund as to individuals who 

have been laid off as they do not qualify as “full time” employees “working for” Fontainebleau for 

whom contributions are owed to the Fund. 

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THIRD DEFENSE 

Fontainebleau has complied with and performed all of its promises, obligations, and duties 

under the CBA.

FOURTH DEFENSE 

Trustees’ counterclaim is defeated, in whole or in part, by the doctrines of waiver and/or 

estoppel.

FIFTH DEFENSE 

Trustees’ demand for attorneys’ fees should be denied because Fontainebleau’s defenses 

and actions in regard to its determination that it owes no obligation to contribute to the Fund for 

individuals who have been laid off are, and were, reasonable and made in good faith. 

SIXTH DEFENSE 

Trustees’ demand for liquidated damages, insofar as it may be based on the percentage set 

forth in the Trust Agreement, is void as a penalty and should, therefore, be denied for three reasons: 

(1) any harm to Trustees as a result of the unpaid contributions at issue would not be difficult or 

impossible to estimate; (2) the amount set forth in the governing documents for liquidated damages 

is not a reasonable forecast of just compensation for any harm caused; (3) the amount set forth in 

the governing documents is not the result of a good faith attempt to set an amount equivalent to 

anticipated damages. 

SEVENTH DEFENSE 

Fontainebleau reserves the right to amend, modify, or plead additional defenses based upon 

facts or information ascertained as this matter proceeds. 

REQUESTED RELIEF 

Counter Defendant Fontainebleau Hotel Florida, LLC respectfully requests that the Court: 

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1. Dismiss Counter Plaintiffs’ counterclaims against Fontainebleau with prejudice, 

and enter judgment in Fontainebleau’s favor on such counterclaims; 

2. Award Fontainebleau its costs of suit, including reasonable attorneys’ fees under 

29 U.S.C. §1132(g)(1); and 

3. Grant such other relief as is appropriate under the circumstances of this case. 

Respectfully submitted, 

OGLETREE, DEAKINS, NASH, SMOAK & 

STEWART, P.C. 

/s/ Russell S. Buhite 

Russell S. Buhite, FL 0831085 

Russell.Buhite@ogletree.com 

1201 Third Avenue, Suite 5150 

Seattle, WA 98101 

Telephone: 206-693-7057 

Facsimile: 206-693-7058 

/s/ S. Kathleen Massing 

S. Kathleen Massing, FL 0722219 

Kathleen.Massing@ogletree.com 

100 North Tampa Street, Suite 3600 

Tampa, FL 33602 

Telephone: 813-289-1247 

Facsimile: 813-289-6530 

/s/ Charles E. Engeman

Charles E. Engeman 

(Pro Hac Vice admission pending) 

Charles.Engeman@ogletree.com 

The Tunick Building 

1336 Beltjen Road, Suite 201 

St. Thomas, USVI 00802 

Telephone: 340-714-1233 

Facsimile: 340-714-1245 

Attorneys for Plaintiff/Counter Defendant 

FONTAINEBLEAU HOTEL FLORIDA, LLC 

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CERTIFICATE OF SERVICE 

I certify that on August 24, 2020, I electronically filed the foregoing with the Clerk of Court 

using CM/ECF. I also certify that the foregoing is being served this day on all parties and/or 

counsel of record identified on the below Service List, either via transmission of Notice of 

Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or 

parties who are not authorized to receive electronically Notices of Electronic Filing. 

By: /s/ Russell S. Buhite

RUSSELL S. BUHITE 

SERVICE LIST 

D. Marcus Braswell, Jr., FL 46160 

Howard S. Susskind, FL 184696 

SUGARMAN & SUSSKIND, P.A. 

100 Miracle Mile, Suite 300

Coral Gables, FL 33134 

Telephone: (305) 529-2801 

Facsimile: (305) 447-8115 

Email: mbraswell@sugarmansusskind.com 

hsusskind@sugarmansusskind.com 

Attorneys for Defendant The South Florida Welfare Fund, Counter Plaintiff Fund Trustees, 

and Counterclaim Plaintiff UNITE HERE, Local 355 

Kristin L. Martin, CA Bar No. 206528 

(admitted Pro Hac Vice) 

McCRACKEN, STEMERMAN & HOLSBERRY, LLP 

595 Market Street, Suite 800 

San Francisco, CA 94105 

Telephone: (415) 597-7200 

Facsimile: (415) 597-7201 

Email: klm@msh.law 

Attorneys for Counterclaim Plaintiff UNITE HERE, Local 355 

43783333.2 

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