United States District Court, N.D. California
ORDER GRANTING CROSS-DEFENDANT'S MOTION TO
DISMISS COUNTERCLAIM DOCKET NO. 84
M. CHEN UNITED STATES DISTRICT JUDGE
Fregoso Builders, Inc. moves to dismiss Cross-Complainant
Marlon Eugene Hettinger's sole counter-claim. Mr.
Hettinger has not filed an opposition. For the reasons below,
and because this matter is appropriate for resolution without
oral argument, see Local Civ. Rule 7-1(b), the Court
GRANTS Fregoso's motion to dismiss. Mr.
Hettinger may file an amended complaint within 30 days.
FACTUAL AND PROCEDURAL BACKGROUND
case began as an effort to recover employee benefits under
the Employee Retirement Income Security Act
(“ERISA”) of 1974. See 29 U.S.C. §
1145. Plaintiffs Jack Buckhorn and Anisa M. Thomsen are the
trustees and fiduciaries for various trust funds representing
electrical workers. Second Amended Complaint
(“SAC”) ¶ 2. Fregoso Builders, Inc. assigned
its claims against Defendant Marlon Eugene Hettinger to the
Trust Funds in March 2016. Id.¶ 7. Mr.
Hettinger, who does business as Hettinger Electric, was an
employer who authorized the Redwood Empire National
Electrical Contractors as its bargaining representative to
bind himself to certain collective bargaining agreements and
trust fund plans. In the case in chief, Plaintiffs seek to
recover allegedly outstanding contributions from Mr.
Hettinger for June, July, and August 2015.
January 26, 2018, the Court ordered Mr. Hettinger to show
cause why default should not be entered in light of his
failure to answer Plaintiffs' second amended complaint.
See Docket No. 80. The Court vacated the Order after
Mr. Hettinger filed a response, including an answer asserting
a counter-claim against Plaintiff Fregoso Builders, Inc.
(“Fregoso”). See Docket No. 83
Hettinger is pro se and he filed a form answer. In the
section concerning affirmative defenses, Mr. Hettinger
asserts that “Fregoso builders is not part of the
signatory agreement that Hettinger Electric signed with
Plaintiff” but rather “was the general contractor
on this project.” Answer at 3. Fregoso “had a
time and [m]aterial contract with Hettinger Electric and was
not billed for the employee benefits for this Project.”
Id. Mr. Hettinger also asserts a single counterclaim
against Fregoso, stating in the entirety that the claim is
for “[u]npaid benefits for the employees working on the
Sonoma State housing project” in the amount of $15,
851.44 and $3, 381.40. Id. at 4. No. further
information is provided. It is unclear, for example, how, if
at all, the allegations in Plaintiffs' complaint are
related to Defendant's counterclaims or how the
information listed in the affirmative defense section relates
to the counterclaim (if at all).
moves to dismiss under Rule 12(b)(6) or, in the alternative,
for a more definite statement under Rule 12(e). Rule 12(b)(6)
permits the court to dismiss a complaint that fails to
plausibly state “a claim upon which relief can be
granted.” See Fed. R. Civ. P. 12(b)(6);
Aschroft v. Iqbal, 556 U.S. 662 (2009). “A
document filed pro se is to be liberally construed,
and a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quotations and citation
construed liberally, Mr. Hettinger's cross-complaint
fails to state a cognizable claim. Though it is evident he
seeks to recover unpaid benefits, the legal basis for his
entitlement is not alleged. For example, it is not clear
whether Mr. Hettinger asserts that Fregoso owes the benefits
amounts because of a contractual or statutory duty.
Mr. Hettinger appears to seek the unpaid benefits on behalf
of “the employees working on the Sonoma State housing
project, ” but he does not provide any factual
information to support a finding that he has standing to do
so. For example, it is not clear if Mr. Hettinger is seeking
to recover benefits owned to his own employees or to him
personally. Moreover, if Mr. Hettinger is one of the
employees, it is not clear if he intends only to recover the
benefits specifically owed to him or if he seeks to represent
the other employees on a class-wide basis under Federal Rule
of Civil Procedure 23. No. background information is provided
about the “Sonoma State housing project” and its
relationship to Mr. Hettinger or Fregoso.
light of the lack of clarity, the Court cannot infer the
factual or legal basis for Mr. Hettinger's legal claim
against Fregoso. The Court will therefore
GRANT Fregoso's motion to dismiss the
counterclaim. However, Mr. Hettinger may file an amended
counter-claim within 30 days of this order to attempt to
state a claim. In his amended complaint, Mr. Hettinger should
include sufficient, specific factual allegations to enable
Fregoso and the Court to understand the factual and basis for
his claim. For example, the complaint should explain the
basis of any legal duty owed by Fregoso to Mr. Hettinger
(e.g., if there is a contract, what the contract
requires, and so on), the nature of the unpaid benefits and
to whom they are owed (e.g., to Mr. Hettinger, to
his employees, or to both, and if to his employees, then Mr.
Hettinger's basis for asserting standing to bring claims
on behalf of his employees), and any background information
necessary to understand the claim (e.g., the nature
of the Sonoma State housing project and Mr. Hettinger's
and Fregoso's role in it).
the Court advises Mr. Hettinger that he may wish to contact
the Court's Legal Help Center, which provides free
information to pro se litigants about legal rights and
responsibilities, court procedures, and so on. The Legal Help
Center can be contacted at 415-782-8982 and more information
is available on the Court's website at
https://www.cand.uscourts.gov/legal-help. This order
disposes of Docket No. 84. The April 19, 2018 hearing is