Buckhorn v. Hettinger

Background

The plaintiffs alleged that Marlon Eugene Hettinger, individually and doing business as Hettinger Electric, failed to pay employee-benefit contributions required by a collective bargaining agreement governed by the Employee Retirement Income Security Act (ERISA). Fregoso Builders, Inc., a general contractor, separately alleged that Hettinger breached their written electrical subcontract.

Fregoso paid $39,350.97 to the plaintiff employee-benefit trust funds after the funds issued a stop notice concerning unpaid contributions for work on the Sonoma State Project. Fregoso then pursued recovery from Hettinger based on an assignment from the trust funds.

Hettinger filed a counter-complaint against Fregoso seeking payment for the reasonable value of his work, including labor, materials, overhead, and ERISA contribution costs. In an earlier order, the court had dismissed Hettinger’s prior counterclaim without prejudice to filing it in state court. Hettinger’s counsel had agreed that any further action would be filed in state court rather than in this case.

Fregoso’s Motion

Fregoso moved under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal for failure to state a legally sufficient claim. Fregoso argued that Hettinger’s counter-complaint was untimely because he filed it 37 days after the third amended complaint, even though the rules required a responsive pleading within 21 days. Fregoso also argued that the counter-complaint violated the court’s earlier orders and counsel’s agreement that the claim would be pursued in state court.

The court agreed that the counter-complaint was untimely. It also held that, regardless of timeliness, Hettinger’s attempt to bring the indemnity claim in this federal case conflicted with the earlier orders. The court therefore affirmed those orders and granted Fregoso’s motion to dismiss Hettinger’s counter-complaint without prejudice to filing in state court.

Hettinger’s Motion

Hettinger moved under Rule 12(b)(6) or, alternatively, Rule 12(c), which permits judgment on the pleadings after the pleadings are closed. He argued that he and Fregoso never agreed to the contract attached to the third amended complaint because Fregoso later made material handwritten changes. He also argued that Fregoso’s contract claim was barred by the statute of limitations and that the court lacked supplemental jurisdiction over the state-law contract claim.

The court held that Hettinger’s Rule 12(b)(6) motion was untimely because he filed it after answering the third amended complaint. The court treated the alternative request as a Rule 12(c) motion but denied it because the pleadings were not closed: Fregoso had not yet filed a response to Hettinger’s counterclaim. The court therefore denied Hettinger’s motion for judgment on the pleadings.

The court also rejected Hettinger’s jurisdiction argument. It held that Fregoso’s contract claim and the plaintiffs’ ERISA claim arose from a common set of facts concerning unpaid amounts for work on the Sonoma State Project. The contract claim was therefore properly part of the same case. The court did not decide in this order whether the contract was valid or whether Fregoso’s claim was barred by the statute of limitations.

Disposition

The court granted Fregoso’s motion to dismiss Hettinger’s counter-complaint without prejudice to filing in state court and denied Hettinger’s motion to dismiss and/or for judgment on the pleadings. Judge Thomas S. Hixson signed the order.