Burke v. Hamilton, No. 06-5249 (2d Cir. 2008)
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06-5249-cv Burke v. Hamilton 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 (Argued: April 16, 2008 Decided: June 4, 2008) 5 Docket No. 06-5249-cv (L), 06-5425-cv (XAP) 6 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THOMAS BURKE, RICHARD DANITZ, ROBERT J. KULCZYK, JAMES M. KILGER, BRUCE HOFFMAN, GEORGE FERRARO, JAMES BIDDLE SR., JOHN O HARE JR., as Trustees on Behalf of the Buffalo Carpenters Pension Fund, and BUFFALO CARPENTERS PENSION FUND, 29 Appeal from a judgment after a bench trial in the United Plaintiffs-Appellants-Cross-Appellees, - v. - HAMILTON EQUIPMENT INSTALLERS, INC., Defendant-Appellee-Cross-Appellant, PROFESSIONAL FURNISHINGS & EQUIPMENT, INC., HAMILTON INSTALLERS, INC., and A. JAN STALKER ASSOCIATES, INC., Defendants-Appellees. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B e f o r e: WINTER, SACK, Circuit Judges, and MURTHA, District Judge.* 30 States District Court for the Western District of New York 31 (Richard J. Arcara, Judge) finding Hamilton Equipment Installers * The Honorable J. Garvan Murtha, United States District Judge for the District of Vermont, sitting by designation. 1 1 liable as an alter ego for the ERISA liability of Hamilton 2 Installers, but finding that Professional Furnishings & Equipment 3 was not liable for these debts either as an alter ego or under a 4 veil-piercing theory. 5 the district court, we affirm. 6 7 8 9 10 11 12 13 14 15 16 17 18 For substantially the reasons stated by JONATHAN G. JOHNSEN, Creighton, Pearce, Johnsen & Giroux, Buffalo, New York, for Plaintiffs-Appellants-Cross-Appellees. PHILIP B. ABRAMOWITZ, Barth, Sullivan and Baer LLP, Buffalo, New York (Jason H. Sterne, Williamsville, New York, on the brief), for Defendant-Appellee-Cross-Appellant and Defendants-Appellees. PER CURIAM: Thomas Burke et al. appeal from a judgment issued after a 19 bench trial by Judge Arcara. 20 Inc., No. 02-CV-519, 2006 WL 3831380 (W.D.N.Y. Oct. 16, 2006). 21 We assume familiarity with the district court s opinion. 22 See Burke v. Hamilton Installers, Judge Arcara held that certain ERISA withdrawal liabilities 23 incurred by Hamilton Installers, Inc. ( Installers ) under the 24 terms of a collective bargaining agreement with the Carpenters 25 Pension Fund could be attributed to Hamilton Equipment 26 Installers, Inc. ( Equipment ). The district court found that 27 Equipment was an alter ego of Installers under a theory derived 28 from labor law. 29 743, 748 (2d Cir. 1996). 30 Professional Furnishings & Equipment ( Professional ) was not See Lihli Fashions, Inc., v. N.L.R.B., 80 F.3d However, the court also found that 2 1 derivatively responsible for Installers ERISA liability because 2 Professional was not an alter ego of Equipment and because there 3 were no grounds to pierce the corporate veil between Professional 4 and Equipment. 5 Burke argues in his appeal that Professional is responsible 6 for Equipment s ERISA liability under the veil-piercing theory 7 enunciated in Lowen v. Tower Asset Management, Inc., 829 F.2d 8 1209, 1220-21 (2d Cir. 1987). 9 flow from Installers to Equipment to Professional. 10 11 12 Under this theory, liability would Equipment cross-appeals, contending that it was neither an alter ego nor a successor of Installers. We affirm on both the appeal and the cross-appeal for 13 substantially the reasons stated by the district court. 14 Burke, 2006 WL 3831380. 15 piercing theory enunciated in Lowen does not render Professional 16 responsible for the ERISA liability originally incurred by 17 Installers and attributed to Equipment. 18 1220-21. 19 of the firms, Professional has no connection to Installers ERISA 20 liability or to the circumstances surrounding the founding of 21 Equipment. 22 was created - in part to avoid Installers obligations under the 23 collective bargaining agreement - long before Professional was 24 founded. See We specifically note that the veil- See Lowen, 829 F.2d at Other than familial relationships among the principals Installers ERISA debts were incurred and Equipment To the extent that Installers and Equipment were 3 1 deliberately undercapitalized, this also occurred well before 2 Professional existed. 3 competition for business with Equipment s then-parent company. 4 Professional therefore had nothing to do with Installers 5 incurring ERISA liability or with Equipment s creation as 6 Installers alter ego. 7 Professional derived any substantial benefit from the creation of 8 Equipment to avoid, inter alia, ERISA liability. 9 relevant events occurred, Professional did business with After Professional was created, it was in Appellants also have not shown that Long after the 10 Equipment and arguably exerted influence over it. 11 relationship provides no grounds, however, for rendering 12 Professional liable for Equipment s derivative liability for 13 Installers debts. 14 15 This later For the foregoing reasons, the judgment of the district court is AFFIRMED. 16 4
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