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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

CHICAGO REGIONAL COUNCIL OF ) 

CARPENTERS PENSION FUND, CHICAGO ) 

REGIONAL COUNCIL OF CARPENTERS ) 

WELFARE FUND, the CHICAGO REGIONAL ) 

COUNCIL OF CARPENTERS APPRENTICE ) 

TRAINING FUND, ) 

 ) 

 Plaintiffs, ) Case No. 12 cv 1795 

 ) Judge Schenkier 

 v. ) 

 ) 

McGREAL CONSTRUCTION, INC., and ) 

WEST BUILDERS, INC., ) 

 ) 

 Defendants. ) 

PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION TO DISMISS 

COMPLAINT

 PLAINTIFFS, the Chicago Regional Council of Carpenters Pension Fund, et al. 

(“Trust Funds”), by and through their attorney David Whitfield of Whitfield, McGann & 

Ketterman, respond to Defendants’ Motion to Dismiss Complaint, and in support 

thereof, state as follows: 

BACKGROUND

 On March 12, 2012, the Trust Funds filed suit against McGreal Construction, Inc. 

(McGreal) and West Builders, Inc. (West) under Section 502 of the Employee 

Retirement Income Security Act and Section 301 of the Taft-Hartley Act, alleging that 

West is an alter-ego or single employer with McGreal. The Trust Funds filed a first 

amended complaint on July 7, 2012, adding additional facts in support of its claim. 

Plaintiff amended the complaint not to concede the Trust Funds’ failure, as West 

suggests in its motion to dismiss, but to more succinctly state the cause of action and 

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expedite motion practice out of respect for this Court’s time and resources. (See West 

Mot. to Dis. at p. 1). 

 Plaintiffs’ Complaint alleges that West is a disguised continuance of McGreal, 

(Compl. at ¶ 8). The Complaint further alleges that the McGreal and West have the same 

or related officers, interrelation of operations, common management and common 

control, have no separate identity, and that West is merely a single employer with 

McGreal. (Compl. at ¶ 9). The Complaint contains an allegation that West is the alter 

ego of McGreal. (Compl. at ¶ 9). The Complaint also contains the allegation that West is 

bound to the applicable collective bargaining agreement under a single employer theory. 

(Compl. at ¶ 9). 

West filed a 12(b)(6) motion to dismiss Plaintiffs’ first amended complaint on 

September 4, 2012, to which Plaintiff now responds. 

STANDARD OF CONSIDERATION

 In ruling on a Rule 12(b)(6) motion, the Court accepts as true all well pleaded 

facts in the complaint and draws all reasonable inferences in favor of the plaintiff. 

Thompson v. Ill. Dep’t of Prof’l Regulations, 300 F.3d 750, 753 (7th Cir. 2002). The 

court will dismiss the complaint only when it appears the plaintiff has not satisfied the 

notice-pleading standard. The Seventh Circuit has stated that: “[t]o satisfy the noticepleading standard, a complaint must provide a ‘short and plain statement of the claim 

showing that the pleader is entitled to relief, which is sufficient to provide the defendant 

with ‘fair notice’ of the claim and its basis.” Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 

2009) (Erickson v. Pardus, 127 S. Ct. 2197, 220 (2007) (per curiam) (citing Bell Atlantic 

Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007); Fed. R. Civ. P. 8(a)(2)). In applying this 

standard, a plaintiff must allege “enough facts to state a claim for relief that is plausible 

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on its face.” Twombly, 550 U.S. at 570. Determining plausibility is a “context-specific 

task that requires the reviewing court to draw on its judicial experience and common 

sense.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). 

ARGUMENT

Defendant West has moved to dismiss this Complaint on the basis that Plaintiff 

has not pled sufficient facts to uphold either an alter-ego or single employer theory of 

liability. Defendant West cites to multiple cases in support of the allegation that the 

Trust Funds have only stated conclusory evidence that is “entitled to no weight in [the 

Court’s] analysis.” Contrary to West’s conclusions, the Trust Funds have satisfied the 

Twombly notice-pleading standard. West’s motion to dismiss Plaintiffs’ complaint must 

fail because: (1) the Trust Funds’ complaint sufficiently alleges well pleaded facts to 

support alter-ego and single employer theories of liability; and (2) Plaintiffs are not 

required to plead every alter-ego factor in order to survive a motion to dismiss. 

I. Trust Funds’ Complaint Alleges Sufficient Well Pleaded Facts 

 Plaintiffs’ complaint pleads facts that are more than sufficient to survive West’s 

motion to dismiss. The Seventh Circuit has stated that the amount of factual allegations 

required to state a plausible claim for relief depends on complexity of the legal theory. 

Limestone Dev. Corp. v. Village of Lemont, Ill., 520 F.3d 797, 803 (7th Cir. 2008). In a 

case highly analogous to the present case, Judge St. Eve cited Limestone to conclude 

that alleging disguised continuance, alter ego, and single employer and nothing else was 

sufficient to satisfy the federal notice pleading standards. Chicago Regional Council of 

Carpenters Pension Fund, et al. v. G & L Construction, Inc., et al., 08 cv 7191 (N. D. Ill. 

2009). In the instant case, the Trust Funds have sufficiently alleged: that West is a 

“disguised continuance” of McGreal (Compl. at ¶ 8); that West is an alter-ego of 

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McGreal (Compl. at ¶ 9); and that West is a single employer with McGreal (Compl. at ¶ 

9). 

In Trustees of the Chicago Regional Council of Carpenters Pension Fund, et al. 

v. Central Rug and Carpet Company, Inc., et al., the court denied a 12(b)(6) motion to 

dismiss based on the same allegations as those stated in G&L Construction. In Central 

Rug the defendant contended that the complaint contained only conclusory statements 

as to the relationship between the companies. The Central Rug complaint only stated 

that one company was a disguised continuance of the other, that they were alter-ego 

employers, and that the two companies were a single employer. The Honorable Judge 

Dow stated that “[w]hile the relevant allegations in the complaint are somewhat lean, 

they are sufficient to meet the federal notice pleading standards, particularly in a 

relatively straightforward case like this one.” Trustees v. Central Rug, 10 cv 1493 (N.D. 

Ill. 2012) (citing Limestone, 520 F. 3d at 803). 

 Similarly, in Trustees of the Chicago Regional Council of Carpenters Pension 

Fund, et al. v. Installation 2000, Judge Norgle denied without comment the defendant’s 

12(b)(6) motion to dismiss. 10-cv-6288 (N.D. Ill 2011). The complaint in Installation 

2000, a copy of which is attached, is substantially similar to the Complaint in this case 

with the exception that the complaint in Installation 2000 actually contains less factual 

allegation than this Complaint, and the complaint in Installation 2000 is broken out 

into two Counts. In Installation 2000, the defendant subsequently filed a Motion to 

Reconsider. Judge Norgle denied the motion, pointing out that the Iqbal decision 

“requires the reviewing court to draw on its judicial experience and common sense” in 

determining whether a complaint sufficiently states a claim, and that the Installation 

2000 complaint plainly stated a claim for relief. 

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Further, in Chicago District Council of Carpenters Pension Fund, et al. v. Tinley 

Construction Corp., et al., the court denied a 12(b)(6) motion to dismiss without 

opinion. However, like G&L Construction and Central Rug fewer facts were pled than in 

the instant case, and Judge Pallmeyer found that the allegations of disguised 

continuance, alter ego, and single employer were sufficiently pled to overcome a motion 

to dismiss. 

In two additional cases, courts have ruled indirectly on the sufficiency of this 

Complaint. In both of those cases - Carpenters v. Three Way Hanging, Inc., 06 –cv3738 (N.D. Ill. 2009) and Carpenters v. Salvador Ortega, 1991 U.S. Dist. LEXIS 12124 

(August 30, 1991) - the defendants argued that they did not have to produce the books 

and records of the alleged alter ego until Plaintiffs had obtained enough facts through 

discovery to “demonstrate” that the alleged alter ego was in fact an alter ego. In both 

cases each court implicitly held that the Complaint was sufficient, so that the defendants 

were required to comply with the Plaintiffs’ discovery requests against the alleged alter 

ego. 

In this case, where the signatory was incorporated prior to West, the Plaintiffs’ 

assert that “Christine McGreal is an officer of both Defendant companies,” that the two 

companies share common employees – Steven Wagner, Tim Wilson, Zack Nichol, David 

McGreal, and Robert Rauscher, that the two companies share common business 

locations at Bristol Bay, Villa at the Oaks and West Point Gardens, and several other 

facts that support the present cause of action. (See Compl. at ¶ 8). These statements are 

not simply assertions for which no supporting evidence is offered. Rather, these are well 

pled facts in support of the allegation that West is an alter ego or single employer with 

McGreal. (See Compl. at ¶ 8(c)). 

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West argues that the Trust Funds ignored the standards set forth in IBEW Local 

701 v. Favia Electric, where the Seventh Circuit stated the factors to determine whether 

two companies are a single employer. 995 F.2d 785, 788 (7th Cir. 1993); (West Mot. to 

Dis. at p. 7). However, West fails to explain how these supposed omissions fail to raise 

the Trust Funds’ right to relief above a speculative level. Favia Electric dealt with the 

determination of alter-ego and single employer liability on the merits, not whether the 

plaintiff sufficiently pled facts to overcome a motion to dismiss. 

II. Plaintiffs Do Not Have to Plead Every Factor of an Alter Ego 

West correctly cites Favia Electric as putting forth the Seventh Circuit’s standard 

on finding alter-ego and single employer liability. However, West incorrectly argues that 

Plaintiff must plead all of the Favia Electric factors to overcome a motion to dismiss. 

Defendant has confused the permissive with the mandatory. Because factors on this list 

permit a finding of alter ego does not mean that it is mandatory for all the factors to be 

present for a finding of alter ego. The Seventh Circuit has stated: “[m]eeting all of the 

elements of the single employer doctrine is not essential to a finding that the alter ego 

doctrine applies. Favia Elec. Co., 995 F.2d at 789. An alter ego relationship has been 

found to exist "even though no evidence of actual common ownership was present." Id. 

(quoting Central States Pension Fund v. Sloan, 902 F.2d 593, 597 (7th Cir. 1986)).

"What is essential for the application of the alter ego doctrine, though, is a finding of 'the 

existence of a disguised continuance of the former business entity or an attempt to avoid 

the obligations of a collective bargaining agreement.'" IBEW Local Union 159 v. Circuit 

Elec., L.L.C., 2006 U.S. Dist. LEXIS 37944, 4-5 (W.D. Wis. June 6, 2006) (quoting 

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Trustees of Pension, Welfare and Vacation Fringe Ben. Funds of IBEW Local 701 v. 

Favia Elec. Co., Inc., 995 F.2d 785, 789 (7th Cir.1993)).

The Trust Funds have given Defendant fair notice of what the claim is and 

the grounds upon which it rests. Plaintiffs need not list every factor that may 

evidence a finding of alter ego, successor employer, or single or joint employer in 

order to state a claim. 

CONCLUSION

 For the reasons stated above, Plaintiffs respectfully request that this 

Honorable Court deny Defendant’s Motion to Dismiss. 

 Respectfully Submitted, 

 

 /s/ David Whitfield

 Attorney for Plaintiffs 

David Whitfield 

WHITFIELD, McGANN & KETTERMAN 

111 E. Wacker Drive, Suite 2600 

Chicago, IL 60601 

(312) 251-9700 Fax (312) 251-9701 

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