UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PLUMBERS’ PENSION FUND, )

LOCAL 130, U.A., et al., )

)

Plaintiffs, ) Case No. 20-cv-5024

)

v. ) Hon. Steven C. Seeger

)

PELLEGRINI PLUMBING, LLC and )

DANIEL PELLEGRINI PLUMBING, )

LLC, )

)

Defendants. )

____________________________________)

MEMORANDUM OPINION AND ORDER

Construction and plumbing companies often enter into collective bargaining agreements 

with local unions, and have to pay contributions for fringe benefits for their workers. If they 

don’t pay the contributions, the pension funds can come after them for the amounts owed. The 

case at hand is case in point. 

Plumbers’ Pension Fund, Local 130 and a few other pension funds filed suit against 

Daniel Pellegrini Plumbing, LLC, seeking to recover unpaid contributions owed by a dissolved

company (Pellegrini Plumbing, LLC). They later filed an amended complaint, advancing new 

claims and adding Pellegrini Plumbing, LLC as a defendant. 

Defendants, in turn, moved to dismiss for lack of subject matter jurisdiction. The motion 

to dismiss is granted in part and denied in part. 

Background

Plumbers’ Pension Fund, Local 130 and the other Plaintiffs are pension funds that receive 

contributions from employers under collective bargaining agreements. One of those employers 

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was Pellegrini Plumbing, LLC. As a signatory to the CBA, the company had to make fringe 

benefit contributions to the Funds for all hours worked by Local 130 Union members, nonmembers who performed plumbing work, or subcontractors who performed plumbing work for 

the company.

Pellegrini Plumbing, LLC is not to be confused with Daniel Pellegrini Plumbing, LLC. If 

the names look similar, that’s the whole point. The gist of the lawsuit is that the new company 

(Daniel Pellegrini Plumbing, LLC) is responsible for the obligations of the old company 

(Pellegrini Plumbing, LLC). 

This case is the second time that the parties have come to the federal courthouse. In 

2014, before Daniel Pellegrini Plumbing, LLC sprang into existence, the Funds sued Pellegrini 

Plumbing, LLC to recover unpaid contributions under the CBA. In 2016, Judge Shah entered 

judgment against Pellegrini Plumbing, LLC for $737,967.38. See Plumbers’ Pension Fund, Loc.

130, U.A. v. Pellegrini Plumbing, LLC, No. 14-cv-9933 (N.D. Ill. 2016) (Dckt. No. 56). 

Pellegrini Plumbing, LLC paid some, but not all, of the judgment. The company 

eventually went bust and dissolved, leaving hundreds of thousands of dollars of unpaid 

contributions. 

The owner of the company, Daniel Pellegrini, turned over a new leaf (or, depending on 

your perspective, maybe he turned over the same leaf). In 2019, Daniel Pellegrini created a new 

company: Daniel Pellegrini Plumbing, LLC. 

The following year, the Funds returned to the federal courthouse and filed this follow-on 

case. The Funds basically seek to hold the new company (Daniel Pellegrini Plumbing, LLC) 

responsible for the unpaid contributions owed by the old company (Pellegrini Plumbing, LLC). 

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The Funds have filed two complaints in the case at hand. The original complaint 

included only one claim against only one defendant. The Funds brought a successor liability 

claim under ERISA against Daniel Pellegrini Plumbing, LLC for the unpaid contributions. The 

complaint alleged that Daniel Pellegrini Plumbing, LLC “was incorporated on November 7, 2019 

for the specific intent of continuing the business operations of Pellegrini Plumbing, LLC and 

avoiding trust fund liability when Pellegrini Plumbing, LLC became in default of its obligations 

to the Plaintiffs.” See Cplt., at ¶ 7 (Dckt. No. 1). 

According to the original complaint, Daniel Pellegrini (meaning the natural person) is the 

plumber behind the curtain of both companies, and he simply continued the business operations 

of Pellegrini Plumbing, LLC under a new name (Daniel Pellegrini Plumbing, LLC). The new 

company has the same location, the same workforce, and so on, as the old company. Id. at 

¶¶ 10–16. As the Funds see it, Pellegrini Plumbing, LLC breached the collective bargaining 

agreement by failing to make contributions, and Daniel Pellegrini Plumbing, LLC is on the hook 

for those liabilities as its successor. Id. at ¶¶ 21–22. 

Daniel Pellegrini Plumbing, LLC, in turn, raised an issue about the existence of subject 

matter jurisdiction. See Def.’s Resp., at 2–4 (Dckt. No. 56). It flagged the fact that the 

complaint included only a successor liability claim. And it pointed to a Seventh Circuit case, 

East Central Illinois Pipe Trades Health & Welfare Fund v. Prather Plumbing & Heating, Inc., 

3 F.4th 954 (7th Cir. 2021), which held that federal courts lack jurisdiction over a standalone 

claim for successor liability to enforce a prior ERISA judgment. 

This Court, in turn, ordered the Funds to file a statement and address subject matter 

jurisdiction. See 4/25/22 Order (Dckt. No. 61). The Funds later did so. See Pls.’ Statement 

(Dckt. No. 64). 

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But instead of defending that complaint, the Funds elected to file a new one. See Am. 

Cplt. (Dckt. No. 66). The Funds filed an amended complaint with four counts. This time, the

amended complaint included Pellegrini Plumbing, LLC (the old company) as a defendant, too.

Count I is an alter ego claim under ERISA against Daniel Pellegrini Plumbing, LLC

(only). It alleges that Daniel Pellegrini Plumbing, LLC is the alter ego of Pellegrini Plumbing, 

LLC, and thus is responsible for its unpaid contributions. 

Count II alleges a breach of the collective bargaining agreement by both Pellegrini 

Plumbing, LLC and Daniel Pellegrini Plumbing, LLC. The amended complaint points to 

language in the CBA, alleging that the agreement “shall be equally binding on the Employer and 

its successors and assigns.” Id. at ¶ 39 (quoting Collective Bargaining Agreement, at § 14.2 

(Dckt. No. 66-2)). The amended complaint alleges that Pellegrini Plumbing, LLC breached the 

agreement by failing to notify the Union that it was “changing its name.” Id. at ¶ 41. The

amended complaint also alleges that Daniel Pellegrini, LLC, “as a successor,” violated the 

collective bargaining agreement by failing to pay “for all plumbing work performed by” the two 

companies. Id. at ¶ 43. 

Count III is a successor in interest claim against Daniel Pellegrini, LLC under Illinois

law. 

Finally, Count IV is called “Successor in Interest Federal Law against Defendant Daniel 

Pellegrini [Plumbing, LLC].” Id. at 11. Count IV alleges that Daniel Pellegrini Plumbing, LLC 

is the successor in interest of Pellegrini Plumbing, LLC, and therefore is obligated to pay 

Pellegrini Plumbing, LLC’s debts. Id. at ¶¶ 64, 68. 

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Count IV invokes the section of ERISA that requires contribution payments. Id. at ¶ 59

(citing 29 U.S.C. § 1145). The amended complaint also invokes the enforcement provision of 

ERISA (29 U.S.C. § 1132, also known as section 502 of ERISA), as well as federal common 

law. See Am. Cplt., at ¶¶ 59–60 (Dckt. No. 66). According to the Funds, Count IV falls within 

the Court’s supplemental jurisdiction, see 28 U.S.C. § 1367(a), as a claim related to the federal 

claims in Counts I and II. See Am. Cplt., at ¶ 58.

Defendants responded by renewing the challenge to subject matter jurisdiction. See 

Defs.’ Mtn. to Dismiss (Dckt. No. 70). By and large, the motion to dismiss focuses on the 

jurisdictional statement that the Funds filed in response to this Court’s query about the original 

complaint. There isn’t much of a discussion of the amended complaint. 

Daniel Pellegrini Plumbing, LLC points out that it was not a party to the collective 

bargaining agreement. And once again, it relies on the Seventh Circuit’s decision in Prather 

Plumbing. In the end, Defendants seeks dismissal “with prejudice,” which isn’t possible when a 

dismissal rests on a lack of subject matter jurisdiction. See Lewert v. P.F. Chang’s China Bistro, 

Inc., 819 F.3d 963, 969 (7th Cir. 2016) (“The district court here dismissed the plaintiffs’ claims 

for lack of subject-matter jurisdiction, which is a dismissal without prejudice.”).

Discussion

By all appearances, Defendants seem to challenge the existence of subject matter 

jurisdiction by aiming at the wrong target. The motion to dismiss focuses on the jurisdictional 

statement about the original complaint, without devoting much attention to the amended 

complaint. 

That said, district courts have an independent obligation to confirm the existence of 

subject matter jurisdiction. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). After taking 

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a close look, the Court concludes that the amended complaint fills the jurisdictional potholes 

spotted in the original complaint (but not entirely). 

Taking a step back, the amended complaint includes a claim for alter ego liability (Count 

I), and claims for successor liability (Counts III and IV). The two doctrines often come into play 

in the same case, but they are fundamentally different. Alter ego liability is direct liability – that 

is, it is liability based on the defendant’s own conduct. But successor liability is vicarious 

liability – that is, it is about holding the defendant liable for the conduct of someone else. 

By way of illustration, imagine filing suit against Batman, based on the conduct of Bruce 

Wayne. That’s alter ego liability. Batman and Bruce Wayne are the same person. The face 

behind the mask is the same as the face without the mask. So suing one is the same as suing the 

other. 

On the flipside, imagine suing Superman and attempting to hold him liable for the torts 

committed by Batman (maybe they have an agreement as members of the Justice League, or 

maybe he bought the assets and liabilities of Wayne Enterprises). That’s successor liability – the 

defendant is holding the bag for wrongs committed by someone else. 

The amended complaint at hand includes claims that fall into each category. Count I is 

an alter ego claim under ERISA, alleging that Pellegrini Plumbing, LLC and Daniel Pellegrini 

Plumbing, LLC are one and the same. 

This Court has jurisdiction over an alter ego claim because it involves direct liability, not 

vicarious liability. That is, it is a claim that the defendant itself has violated ERISA. See Bd. of 

Trs., Sheet Metal Workers’ Nat’l Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1038 (7th 

Cir. 2000) (“[A] contention that A is B’s ‘alter ego’ asserts that A and B are the same entity; 

liability then is not vicarious but direct.”) (emphasis in original); Boim v. Am. Muslims for 

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Palestine, 9 F.4th 545, 553 (7th Cir. 2021) (“If Company A and Company B, though nominally 

two enterprises, are effectively a singular organization operating under two names, then A is 

directly responsible for B’s obligations and wrongdoings because they are one and the same 

organization. . . . But the mere fact that two entities are alter egos does not give rise to liability 

on its own – the underlying liability must arise from some source of substantive law, state or 

federal.”); Cent. States, Se. & Sw. Areas Pension Fund v. Cent. Transp., Inc., 85 F.3d 1282, 

1284–86 (7th Cir. 2021).

The Seventh Circuit cemented the point in Prather Plumbing. “In Elite Erectors, we 

reasoned that alter ego liability arguments are, in substance, claims for direct liability under 

ERISA, because they allege that a new company is one and the same as the old company and has 

therefore violated ERISA by failing to comply with the contractual obligations of the old 

company.” See Prather Plumbing, 3 F.4th at 962. In that situation, “a fund can invoke the cause 

of action in ERISA, 29 U.S.C. § 1132, to pursue a claim against the alleged alter ego for itself 

violating ERISA.” Id. at 962–63.

In short, this Court has subject matter jurisdiction over the alter ego claim (Count I). The 

Funds allege that Daniel Pellegrini Plumbing, LLC is the alter ego of Pellegrini Plumbing, LLC, 

so a violation of ERISA by one is a violation of ERISA by the other. In essence, it is a claim that 

Daniel Pellegrini Plumbing, LLC itself violated ERISA, because Daniel Pellegrini Plumbing, 

LLC is Pellegrini Plumbing, LLC. Unmasked, Daniel Pellegrini Plumbing, LLC’s true identity 

is Pellegrini Plumbing, LLC. 

This Court has jurisdiction over Count II as well. That claim alleges that both 

Defendants breached the collective bargaining agreement and thus violated the (federal) Labor 

Management Relations Act. See 28 U.S.C. § 185. More specifically, the amended complaint 

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alleges that Pellegrini Plumbing, LLC is liable as the signatory, and that Daniel Pellegrini 

Plumbing, LLC is liable as the “successor” within the meaning of the collective bargaining 

agreement. See Am. Cplt., at ¶¶ 38, 40–41, 43 (Dckt. No. 66). The collective bargaining 

agreement includes a provision that binds successors, at least in certain circumstances. See 

Collective Bargaining Agreement, at § 14.2 (Dckt. No. 66-2) (“This Agreement shall be equally 

binding on the Employer and its successors and assigns . . . .”). 

That claim may or may not pan out in the end, but jurisdiction does not depend on 

success on the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)

(“It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of 

action does not implicate subject-matter jurisdiction, i.e., the courts’ statutory or constitutional 

power to adjudicate the case.”) (emphasis in original); Bell v. Hood, 327 U.S. 678, 682 (1946)

(“Jurisdiction, therefore, is not defeated as respondents seem to contend, by the possibility that 

the averments might fail to state a cause of action on which petitioners could actually recover. 

For it is well settled that the failure to state a proper cause of action calls for a judgment on the 

merits and not for a dismissal for want of jurisdiction.”). What matters is that the Funds have 

alleged that the Defendants violated a federal statute.

The third claim falls under state law. Count III is a successor liability claim, seeking to 

hold Daniel Pellegrini Plumbing, LLC responsible for the obligations of Pellegrini Plumbing, 

LLC. This Court can exercise supplemental jurisdiction over that state law claim. This Court 

has original jurisdiction over the first two claims, and the third claim is so related that it forms 

the same case or controversy. See 28 U.S.C. § 1367. It is the jurisdictional equivalent of 

in-for-a-penny, in-for-a-pound. 

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The fourth and final claim is more problematic. Count IV is a successor liability claim 

under federal law. The amended complaint invokes the section of ERISA that requires 

contribution payments (29 U.S.C. § 1145), plus ERISA’s enforcement provision (29 U.S.C. 

§ 1132). See Am. Cplt., at ¶ 59 (Dckt. No. 66). The amended complaint invokes federal 

common law, too. Id. at ¶ 60. Count IV also alleges a breach of the collective bargaining 

agreement by both Defendants (but the claim itself is against only the new company, Daniel 

Pellegrini Plumbing, LLC). Id. at ¶ 67.

That claim gets clogged in the works by Prather Plumbing. There, the Seventh Circuit 

expressly concluded that there is no “standalone federal right of action to collect an ERISA 

judgment against an alleged successor.” See Prather Plumbing, 3 F.4th at 961; see also id. at 

963 (“As there is no federal statutory right of action for successor liability under ERISA, nor a 

judicially recognized private implied right of action, the funds have failed to demonstrate that 

this claim arises under federal law.”); Peacock v. Thomas, 516 U.S. 349, 353 (1996) (“We are 

not aware of . . . any provision of ERISA that provides for imposing liability for an extant 

ERISA judgment against a third party.”); Mackey v. Lanier Collection Agency & Serv., Inc., 486 

U.S. 825, 833 (1988) (“ERISA does not provide an enforcement mechanism for collecting 

judgments . . . .”).1

1

 Other areas of ERISA recognize successor liability. A common example is withdrawal liability, 

meaning liability when an employer leaves a multiemployer pension plan and the successor must pay the 

proportionate share of unfunded liabilities for vested benefits. See Ind. Elec. Workers Pension Benefit 

Fund v. ManWeb Servs., Inc., 884 F.3d 770, 773–74 (7th Cir. 2018) (“The Employee Retirement Income 

Security Act of 1974 (ERISA), as amended by the Multiemployer Pension Plan Amendments Act of 1980 

(MPPAA), establishes withdrawal liability for employers leaving a multiemployer pension plan. 29 

U.S.C. § 1381. . . . Successor liability can apply under the MPPAA when the purchaser had notice of the 

liability and there is continuity of business operations.”); see also id. at 775–76.

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There, as here, the litigants invoked ERISA’s civil enforcement provision (29 U.S.C. 

§ 1132) and the provision requiring contributions (29 U.S.C. § 1145). See Prather Plumbing, 3 

F.4th at 961; Pls.’ Resp., at 8 (Dckt. No. 72) (“Section 1132 provides a specific right of action for 

the Plaintiff Trust Funds to enforce § 1145 against the Defendants in the instant action as the 

Plaintiffs are pursuing pre-existing and current obligations against Defendants.”) (emphasis in 

original). But the Seventh Circuit concluded that those provisions do not create a cause of action 

for successor liability to enforce a prior judgment. See Prather Plumbing, 3 F.4th at 961

(“Although the funds cite two provisions of ERISA in their jurisdictional statement on appeal –

the civil enforcement provision, 29 U.S.C. § 1132, and the provision mandating that employers 

contribute to multiemployer benefits plans, id. § 1145 – neither section authorizes a lawsuit to 

hold a successor liable for a prior ERISA judgment.”). So, invoking ERISA does the Funds no 

good because the statute does not create a cause of action to enforce a prior judgment against a 

successor in interest.

The Seventh Circuit added that invoking federal common law is not enough to give rise 

to a cause of action, either. “We have recognized that successor liability in the ERISA domain is 

a creation of federal common law. In that sense, the funds’ complaint implicates federal law. 

But it does not necessarily follow that federal law has also created a cause of action to enforce 

this doctrine in federal court.”2 Id. at 960 (citation omitted). 

The Funds seek refuge in McCleskey v. CWG Plastering, LLC, 897 F.3d 899 (7th Cir. 

2018), but it cannot come to the rescue of Count IV, at least not entirely. There, the Seventh 

2

 Federal common law does not create a claim for successor liability for a prior judgment in this context. 

But federal common law could come into play if a complaint alleged that the successors themselves were 

violating ERISA. See McCleskey v. CWG Plastering, LLC, 897 F.3d 899 (7th Cir. 2018). In that 

situation, federal common law could determine whether the alleged successors are, in fact, successors. 

But federal common law itself does not give rise to an ERISA claim.

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Circuit addressed the viability of a successor liability claim when the complaint alleged a 

continuing violation of a collective bargaining agreement signed by a predecessor. Id. at 902–03 

(“In our case, the Funds argue that CWG is engaged in an ongoing violation of the NLRA and 

ERISA by failing to comply with an extant collective bargaining agreement.”). The Court of 

Appeals held that subject matter jurisdiction existed because the complaint alleged a violation of 

a federal statute. 

So, putting it all together, under ERISA, a plaintiff cannot sue a successor to enforce a 

prior judgment entered against its predecessor. That’s Prather Plumbing. But a plaintiff can sue 

a successor who is bound by a collective bargaining agreement when the plaintiff alleges that the 

successor continues to violate that agreement. That’s McCleskey.

Applying those principles here, the viability of Count IV depends on what, exactly, the 

Funds are alleging. One way to read the claim is that Daniel Pellegrini Plumbing, LLC is the 

successor to Pellegrini Plumbing, LLC, and as the successor, it is liable for its predecessor’s 

liabilities – including the outstanding judgment for unpaid contributions. See Am. Cplt., at ¶ 68 

(Dckt. No. 66) (“Daniel Pellegrini [Plumbing, LLC] succeeded to the liability of Pellegrini 

[Plumbing, LLC] when [it] took over and continued the business operations of Pellegrini 

[Plumbing, LLC] . . . .”). That is, it is possible to read Count IV to allege that Daniel Pellegrini 

Plumbing, LLC is responsible for paying the tab of Pellegrini Plumbing, LLC, but is not itself

committing any ongoing violations of ERISA. If so, that’s not a claim under ERISA. See

Prather Plumbing, 3 F.4th at 961–63.3 

3 This Court has federal question jurisdiction in light of the alter ego claim (Count I) and the claim about 

breaching the collective bargaining agreement (Count II). So, in theory, a district court could exercise 

supplemental jurisdiction over some other claim, even if the court would not have original jurisdiction 

over that claim standing alone. Supplemental jurisdiction would make sense if the amended complaint 

alleged a violation of state law (like Count III). See 13D Charles Alan Wright & Arthur R. Miller, 

Federal Practice and Procedure § 3567 (3d ed. Apr. 2022 update) (“Supplemental claims are governed by 

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Another way to read Count IV is that Daniel Pellegrini Plumbing, LLC is the successor to 

Pellegrini Plumbing, LLC under the collective bargaining agreement, and as the successor, 

Daniel Pellegrini Plumbing, LLC itself is breaching the collective bargaining agreement. See 

Am. Cplt., at ¶ 67 (Dckt. No. 66) (“Pellegrini [Plumbing, LLC] and Daniel Pellegrini [Plumbing, 

LLC] breached the provisions of the CBA and Trust Agreements by failing to submit fringe 

benefit contributions to the Trust Funds.”). If so, that’s a claim under ERISA. See McCleskey, 

897 F.3d at 902–03; see also Prather Plumbing, 3 F.4th at 960 (noting that the claim in 

McCleskey “belonged in federal court because . . . the funds alleged that the son’s business was 

‘engaged in an ongoing violation of the NLRA and ERISA by failing to comply with an extant 

collective bargaining agreement’”) (quoting McCleskey, 897 F.3d at 903). 

In sum, there is no federal cause of action for successor liability under ERISA to enforce 

a prior judgment, so the last claim cannot survive to the extent that it alleges otherwise. But 

Count IV survives to the extent that the Funds are alleging that Daniel Pellegrini Plumbing, LLC 

itself is breaching the collective bargaining agreement.

4

state substantive law.”). But supplemental jurisdiction is not a hook for allowing a claim that invokes 

ERISA when there is no such claim under ERISA. In other words, ERISA does not recognize a claim for 

successor liability for a prior judgment – meaning holding one company responsible for a judgment 

entered against another company – so supplemental jurisdiction cannot save the day. 

4

 At first blush, it isn’t always easy to see the dividing line between a failure to state a claim, and a lack 

of federal question jurisdiction, when a complaint invokes a federal statute. In other words, when does 

the non-existence of a claim under a federal statute become a jurisdictional problem? In Peacock, the 

Supreme Court noted the non-existence of a claim, stating that it was “not aware of . . . any provision of 

ERISA that provides for imposing liability for an extant ERISA judgment against a third party.” See 

Peacock, 516 U.S. at 866. The Supreme Court later added that the plaintiff “failed to allege a claim under 

§ 502(a)(3) for equitable relief.” Id. In the end, the problem was jurisdictional because the plaintiff did 

not allege a violation of a federal statute. “Even if ERISA permits a plaintiff to pierce the corporate veil 

to reach a defendant not otherwise subject to suit under ERISA, Thomas could invoke the jurisdiction of 

the federal courts only by independently alleging a violation of an ERISA provision or a term of the 

plan.” Id. That is, the district court lacked subject matter jurisdiction “[b]ecause Thomas alleged no 

‘underlying’ violation of any provision of ERISA or an ERISA plan.” Id. at 867; see also McCleskey, 

897 F.3d at 902–03 (“[T]he Funds argue that CWG is engaged in an ongoing violation of the NLRA and 

ERISA by failing to comply with an extant collective bargaining agreement. To the extent that 

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Conclusion

For the foregoing reasons, the motion to dismiss is hereby granted in part and denied in 

part. The motion to dismiss Count IV is granted to the extent that it alleges successor liability 

under ERISA to enforce a prior judgment without an ongoing violation of the collective 

bargaining agreement by Daniel Pellegrini Plumbing, LLC. The motion to dismiss is otherwise 

denied. 

Date: January 18, 2023

 

Steven C. Seeger

United States District Judge

Peacock rested on a concern about the existence of a federal basis for the action, it does not appear to 

apply here.”) (emphasis added). 

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