Opinion
05-CV-447 (SLT).
May 11, 2006
MEMORANDUM and ORDER
Plaintiffs bring this action pursuant to the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001 et seq., to recover delinquent contributions allegedly owed to employee fringe benefit trust funds by defendants Wise Construction, Inc. ("the Corporation") and its president, Jessie Wise ("Wise"). In March 2006, Wise, proceeding pro se, filed an answer and counterclaim, in which he denied having a contractual obligation to make the contributions. After a March 23, 2006, conference, at which Magistrate Judge Robert M. Levy agreed to temporarily stay the case against Wise Construction, Inc., while Wise attempts to obtain counsel for the Corporation, Wise moved for "[a]n order to dismiss this case" on the ground that "[n]o contract exist[s]" that would obligate him to pay the allegedly delinquent contributions.
Defendant's motion consists of a Notice of Motion, a two-page affirmation executed by Wise and an Affirmation of Service. The Notice of Motion states that the motions eeks to dismiss the case for lack of jurisdiction pursuant to 29 U.S.C. § 185(c) and 28 U.S.C. § 1331. Wise's affirmation explains the basis for the motion as follows:
The reason why I am entitled to the relief I seek is the following: I have no contract with the plaintiff. The court lack [sic] jurisdiction because I have no contract with the plaintiff.
Affirmation of Jessie Wise, dated Mar. 27, 2006, at 1.
Plaintiff responds to defendant's motion by arguing 1) that it is procedurally defective because Wise fails to properly identify the Rule under which he seeks to have the complaint dismissed, and 2) that defendant is incorrect in asserting that no contract exists. With respect to the second point, plaitnffs argue that Wise executed ana tuhorization as president of the corporation, which granted the General Contractors Association of New York, Inc. ("GCA") permission to negotiate collective bargaining agreements with Local 14 on the Corporation's behalf. In support of this argument, plaintiffs attach an affidavit from GCA's Assistant Director of Labor Relations, which states that Wise executed the authorization on March 17, 1995, and that defenants have not revoked that authorization. See Affidavit of Francis P. DiMenna, dated April 18, 2006, ("DiMenna Affidavit") at ¶¶ 2-3. A copy of the authorization, which appears to be executed by Wise, is attached to the DiMenna Affidavit.
Because Wise is proceedig pro se, this Court is required to construe his motion liberally, See Haines v. Kerner, 404 U.S. 591, 520-21 (1972). "Implicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." Traguth v. Zuck, 710 F.2d 90, 95 (2 Cir. 1983). Although the right ot self-representation "does not exempt a party from compliance with relevant rules of procedural and substantive law," id. (quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)), a pro se litigant's rights "should not be impaired by harsh application of technical rules." Id. Rather, this Court should "interpret [defendant's] submission to the Court in a way that will `raise the strongest arguments they suggest.'" Viada v. Osaka Health Spa, Inc., ___ F.R.D. ___, No. 04 Civ. 2744 (VM), 2006 WL 571350, at *3 (S.D.N.Y. Mar. 3, 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
In light of the foregoing, this Court must reject plaintiffs' first argument, which encourages this Court to deny the pro se defendant's motion purely on procedural grounds. Nonetheless, plaintiffs are correct in noting that Wise has failed to identify the Rule under which he seeks to have the Complaint dismissed. Although defendant states that he is moving to dismiss this case for lack of jurisdiction under 29 U.S.C. § 185(c) and 28 U.S.C. § 1331, defendant's motion cannot properly be construed as a motion pursuant to Fed.R.Civ.P. 12(b)(1), (2) or (3). Moreover, this motion cannot be construed as a motion pursuant to Rule 12(b)(6) because the motion relies on matters outside the pleading — namely, his affirmation denying that any contractual relationship exists between himself and plaintiffs. Instead, the motion, liberally construed, appears to be a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, in which defendant Wise asserts that there is no relationship between himself and plaintiffs which would personally obligate Wise to contribute to plaintiffs' employee fringe benefit trust funds.
Since this Court construes Wise's motion for an order of dismissal as a motion for summary judgment, this Court must give all parties a "reasonable opportunity to present all material made pertinent to such a motion by Rule 56." See Fed.R.Civ.P. 12(b). Wise shall therefore have thirty (30) days from the date of this Memorandum and Order in which to file a supplemental submission setting forth additional evidence to prove conclusively that no contractual relationship exists between himself and plaintiffs which would obligate him to contribute to plaintiffs' employee fringe benefit trust funds. If Wise is unable to present such evidence at this time or would prefer to delay this motion until he has retained counsel to represent both himself and the Corporation, he need not file a supplemental submission but may request permission to withdraw this motion without prejudice to raising it at a later date. If defendant chooses to file a supplemental submission, rather than seek to withdraw this motion without prejudice, plaintiffs shall have thirty (30) days from their receipt of defendant Wise's supplemental submission in which to file a response.