Pridy v. Duke Energy Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

DARRELL PRIDY et al., )

)

Plaintiffs, )

)

v. )

) Case No. 3:19-cv-00468

DUKE ENERGY CORPORATION, ) Judge Aleta A. Trauger

)

Defendant. )

MEMORANDUM

Plaintiffs Local Union 702 of the United Association of Journeymen and Apprentices of

the Plumbing and Pipefitting Industries (the “Union”) and Union members Darrell Pridy,

Gregory Nabors, Michael Sanders, and Randall Abston (the “individual plaintiffs”), on behalf of

themselves and other similarly situated, bring suit against Duke Energy Corporation for alleged

violations of Section 502 of the Employee Retirement Income Security Act (“ERISA”), 29

U.S.C. § 1132(a), the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-12-401,

and Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185. Now

before the court is Duke Energy’s Motion to Dismiss the plaintiffs’ First Amended Complaint.

(Doc. No. 10.)

For the reasons set forth herein, the motion will be granted, but without prejudice to the

plaintiffs’ ability to seek leave to amend.

I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

The plaintiffs filed suit on May 31, 2019 and filed their First Amended Complaint (Doc.

No. 7) (hereafter, “Complaint”) on June 20, 2019, within twenty-one days of service. The

plaintiffs allege that the individual plaintiffs are all over the age of forty; have been “employed

by Duke Energy and/or its predecessors” for decades; and have “participated in various

employee benefit plans, including a welfare benefit plan for Duke Energy employees providing

sick leave and short-term disability benefits.” (Doc. No. 7 ¶¶ 1–4.)

They allege that the individual plaintiffs began their employment with “the Company”1

when it was Nashville Gas Company, which was later acquired by and became a division of

Piedmont Natural Gas Company (“Piedmont Gas”). (Id. ¶ 10.) The plaintiffs allege that, in

October 2016, “Duke Energy acquired and became successor to Piedmont Gas, which is now a

subsidiary of Duke Energy.” (Id.; see also id. ¶ 6 (“Duke Energy . . . operates a subsidiary

Company called Piedmont Natural Gas, which is registered to do business in the state of

Tennessee.”).) Although they allege that Piedmont Gas is registered to do business in the state of

Tennessee, they do not allege that Duke Energy is. Despite acknowledging Piedmont’s continued

corporate existence and status as a subsidiary, the plaintiffs assert that Duke Energy “became

successor to Piedmont Gas” and that, as successor, “it is obligated and bound by the applicable

collective bargaining agreements” discussed in the Complaint. (Id. ¶ 10.)

During their employment, the individual plaintiffs have continuously been members of

the Union and represented by it in collective bargaining. (Id. ¶ 15.) The plaintiffs claim that, “[a]t

all times during [the individual plaintiffs’] employment, [the Company] was and continues to be

a party to the collective bargaining agreement with [the Union].” (Id. ¶ 16.)

The plaintiffs allege that the collective bargaining agreement in effect from 1989 to 1992

(“1989 CBA”) between the Company and the Union “established a sick leave and short-term

1 The plaintiffs use the terms Duke Energy, “the Company,” and “Defendant”

interchangeably throughout the Complaint, when it is apparent from context they really mean

Duke Energy or its predecessor. To be consistent with the plaintiffs’ usage and to attempt to

minimize confusion, the court will use the term “the Company.”

disability benefit plan (‘Plan’)”governed by Section X of that document. The plaintiffs assert that

Section X of the 1989 CBA “and successive collective bargaining agreements are the governing

Plan documents.” (Id. ¶ 18.)

The 1989 CBA’s Plan allowed participants to accrue sick leave days as they worked for

“the Company” and to “bank” the accumulated days. The 1989 CBA refers to the accrued sick

leave account as a “sickness allowance.” (Id. ¶ 19.) The benefit Plans described in subsequent

collective bargaining agreements in effect over the ensuing decade continued to adopt a similar

sickness allowance policy, permitting the accrual of hours of unused sick leave and the banking

of such time. The collective bargaining agreement adopted in 1999 and in effect until 2004 (the

“1999 CBA”) was the last collective bargaining agreement to allow the unlimited accrual of sick

leave hours. (Id. ¶¶ 18–20.) The sickness allowance effectively rewarded individuals who did not

take frequent sick leave by allowing them to continue to accrue an unused allotment by carrying

over those hours from year to year. (Id. ¶ 24.)

The collective bargaining agreement that went into effect on December 31, 2004 (“2004

CBA”), eliminated the accumulation of hours in “Leave Banks” going forward, but it allowed

participants with hours already accrued in their Leave Banks to carry over and use that time as

described in the 2004 CBA. (Id. ¶ 25.) The relevant provision in the 2004 CBA provided, in

relevant part:

Employees are credited with 12 days of sick leave each January 1 to be taken as

needed for any period of illness during the calendar year. They may also use any

accrued sick days in their Leave Bank (sick leave earned before January 1, 2005)

when all of their annual sick days have been used or for a certified FMLA Leave

to care for an immediate family member. Banked days may also be used to cover

the waiting period before short-term disability benefits begin.

(Id. ¶ 26.)

According to the plaintiffs, the collective bargaining agreements in effect from August

2008 through August 2012 (“2008 CBA”) and from August 2012 through August 2018 (“2012

CBA”) similarly recognized employees’ ability to use Leave Bank time accrued prior to January

2005. (Id. ¶ 27.) The current collective bargaining agreement (“2018 CBA”) went into effect on

April 14, 2018. (Doc. No. 11-4.) The 2018 CBA is silent regarding Leave Banks and leave hours

accrued prior to 2015. (See generally id.) However, in April 2018, the Company eliminated

employees’ access to an online portal for accessing their Leave Banks and began refusing to

honor the accrued time in employees’ Leave Banks. The Company allegedly provided no prior

notice of this action. All of the individual plaintiffs and putative class members had accrued sick

leave hours in their Leave Banks. At least one of the individual plaintiffs requested to use

accrued leave time in late April 2018 but was informed by his supervisor that “the Company no

longer allowed employees to use those benefits.” (Id. ¶ 30.)

The plaintiffs allege that, during negotiations leading up to execution of the 2018 CBA,

the Company and the Union did not bargain over sick leave and short-term disability benefits

that were owed under prior collective bargaining agreements. (Id. ¶ 32.) “[I]nstead, the Company

unilaterally informed [the Union] that it would no longer honor accrued Leave Bank benefits in

the new collective bargaining agreement, and unilaterally chose to deny accrued Leave Bank

benefits” to the individual plaintiffs and the other 60 class members. (Id.; see also ¶ 34.)

Based on these allegations, the plaintiffs allege that Duke Energy violated ERISA by

wrongfully denying accrued and nonforfeitable rights to banked sick and disability leave

benefits; discriminated against them on the basis of age, in violation of the THRA; and violated

the LMRA by breaching binding collective bargaining agreements.

In lieu of answering, Duke Energy filed its Motion to Dismiss, arguing that dismissal is

required because, first, the plaintiffs have not brought suit against the proper party. In support of

this assertion, Duke provided as exhibits complete copies of the 2004, 2008, 2012, and 2018

CBAs. The 2004 CBA, like the 1999 CBA submitted by the plaintiffs, was entered into by and

between the Union and “Nashville Gas Company, a division of Piedmont Natural Gas Company,

Inc.” (Doc. Nos. 7-3, 11-1.) The three more recent collective bargaining agreements, including

the one that went into effect on April 14, 2018, are between the Union and Piedmont Gas. (Doc.

Nos. 11-2, 11-3, 11-4.) Duke Energy also argues that the plaintiffs failed to raise their claims

through the proper grievance and arbitration procedure set forth in the operative collective

bargaining agreement; that the individual plaintiffs fail to state a claim for which relief may be

granted under ERISA; and that the individual plaintiffs’ claim under the THRA is completely

preempted by the LMRA.

The plaintiffs have filed a Response (Doc. No. 15), arguing that the factual allegations in

the Complaint, construed as true, show that Duke Energy is a proper party to this lawsuit and

generally refuting the defendant’s other arguments. With the court’s permission, Duke Energy

filed a Reply (Doc. No. 18.)

II. STANDARD OF REVIEW

For purposes of a motion to dismiss under Rule 12(b)(6), the court must take all of the

factual allegations in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 556 (2007) To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

face. Iqbal, 556 U.S. at 678. A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged. Id. Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice. Id. When there are well-pleaded factual allegations, a

court should assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief. Id. at 679. A legal conclusion, including one couched as a factual allegation,

need not be accepted as true on a motion to dismiss, nor are mere recitations of the elements of a

cause of action sufficient. Id. at 678; Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th

Cir. 2010).

The Iqbal Court suggested that a district court considering a motion to dismiss “can

choose to begin” its analysis “by identifying pleadings that . . . are not entitled to the assumption

of truth.” Id. at 679. As indicated above, pleadings that do not constitute factual allegations,

including “bare assertions,” formulaic recitation of the elements, and “conclusory” or “bald”

allegations, need not be accepted as true. Id. at 681. The question is whether the remaining

factual allegations plausibly suggest an entitlement to relief. Id. If not, the pleading fails to meet

the standard of Fed. R. Civ. P. 8 and must be dismissed pursuant to Rule 12(b)(6). Id. at 683.

As a general rule, matters outside the pleadings may not be considered in ruling on a

motion to dismiss under Fed. R. Civ. P. 12(b)(6) unless the motion is converted to one for

summary judgment under Rule 56. Fed. R. Civ. P. 12(d). However, documents attached to the

pleadings become part of the pleadings and may be considered on a motion to dismiss. Fed. R.

Civ. P. 10(c). In addition, when a document is referred to in the pleadings and is integral to the

claims, it may be considered without converting a motion to dismiss into one for summary

judgment. Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 335–36 (6th Cir.

2007); Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999).

III. DISCUSSION

Duke Energy asserts, as a threshold matter, that the plaintiffs’ dispute arises out of

contracts between the Union and the individual plaintiffs’ employer, Piedmont Gas. It asserts

that, “[w]hile it is true that Duke Energy acquired Piedmont Gas in 2016, it is not true that Duke

Energy thereby ‘became the successor to Piedmont Gas’ [or that it is] ‘obligated and bound by

the applicable collective bargaining agreements’” described in the Complaint. (Doc. No. 11, at

6–7 (quoting Doc. No. 7 ¶ 10).) It argues that, under Tennessee law, a parent corporation and

subsidiary corporation are “presumed to be separate and distinct legal entities” and that the

plaintiffs have not alleged facts that would permit them to “pierce the corporate veil” and make

Duke Energy liable for its subsidiary’s actions. (Id. at 7 (quoting Gordon v. Greenview Hosp.,

Inc., 300 S.W.3d 635, 651 (Tenn. 2009); citing Cambio Health Solutions, LLC v. Reardon, 213

S.W.3d 785, 790–91 (Tenn. 2006)).) It also asserts that the plaintiffs’ claim that Duke Energy is

Piedmont Gas’s legal successor is a legal conclusion—rather than a statement of fact that the

court must accept as true for purposes of the Motion to Dismiss—and that successor liability and

corporate veil piercing are “separate legal doctrines.” (Reply, Doc. No. 18, at 1 (quoting In re

Welding Fume Prods. Liab. Litig., No. 1:03-CV-17000, 2010 WL 2403355, *8 (N.D. Ohio June

11, 2010)).)

For their part, the plaintiffs contend that the factual allegations in the Complaint must be

accepted as true for purposes of ruling on the Motion to Dismiss. They point out that the

Complaint alleges that “Duke Energy acquired and became successor to Piedmont Gas, which is

now a subsidiary of Duke Energy,” and that, as successor, Duke Energy is “obligated and bound

by the applicable collective bargaining agreements described below.” (Doc. No. 7 ¶ 10.) They

argue that these allegations, assuming that the court draws all reasonable inferences in the

plaintiffs’ favor, as it must at this juncture, are sufficient to establish that Duke Energy, upon

acquiring Piedmont Gas in October 2016, became the successor employer of the individual

plaintiffs and assumed all of Piedmont Gas’s obligations under the collective bargaining

agreements. (Doc. No. 15, at 6.) The plaintiffs also argue that, in labor and employment cases,

federal common law, rather than Tennessee law, applies and that the federal courts have “applied

an equitable, policy driven approach to successor liability ‘that has very little connection to the

concept of successor liability in corporate law.’” (Doc. No. 15, at 6–7 (quoting Cobb v. Contract

Transp., Inc., 452 F.3d 543, 551 (6th Cir. 2006)).)

Although the plaintiffs reference numerous collective bargaining agreements in the

Complaint, they did not file any of them as exhibits to their pleading. Duke Energy attached to

its Motion to Dismiss a copy of 2004 CBA, 2008 CBA, 2012 CBA, and 2018 CBA. (Doc. Nos.

11-1, 11-2, 11-3, 11-4.) Because these collective bargaining agreements are referred to in the

pleadings and are integral to the plaintiffs’ claims, the court may consider them without

converting the motion to dismiss into one for summary judgment. Commercial Money Ctr.., 508

F.3d at 335–36.

Notably, all of the plaintiffs’ claims hinge upon Duke Energy’s purported repudiation of

its alleged obligations under the collective bargaining agreements. In support of their claims, the

plaintiffs assert that they became employed by the “Company,” defined to include Duke Energy,

at various times between 1979 and 1987 (Doc. No. 7 ¶¶ 11–14) and that, “[a]t all times during

their employment, Defendant was and continues to be a party to a collective bargaining

agreement” with the Union. (Id. ¶ 16.) However, the plaintiffs’ allegation that Duke Energy is a

party to the collective bargaining agreements is refuted by the collective bargaining agreements

themselves. It is well settled that, when a document attached to the Complaint contradicts

allegations in the Complaint, “the exhibit trumps the allegations.” Cates v. Crystal Clear Techs.,

LLC, 874 F.3d 530, 536 (6th Cir. 2017) (citations omitted). This rule encompasses exhibits

referred to in the pleadings and integral to the claims but actually supplied by the defendant.

The collective bargaining agreements themselves show that Duke Energy is not a party to

them. Instead, the collective bargaining agreements are all between Piedmont Gas and the

Union—including the 2018 CBA, which was executed and went into effect after Duke Energy

acquired Piedmont Gas in 2016. Moreover, the plaintiffs do not allege that Duke Energy’s

acquisition of Piedmont Gas was in the form of a merger or that Piedmont Gas ceased to exist as

a corporate entity. Instead, the Complaint acknowledges Piedmont Gas’s continued independent

existence, alleging that Piedmont Gas remains a subsidiary of Duke Energy and that Piedmont

Gas (but apparently not Duke Energy) is registered to do business in Tennessee. (Doc. No. 7 ¶

6.)

The plaintiffs maintain that their assertion that Duke Energy is Piedmont Gas’s successor

is a factual allegation that the court must accept as true at this juncture. The court is not

persuaded. The question of successorship is a legal inquiry that is dependent upon many facts.

See Cobb, 452 F.3d at 552 (“[T]he labor law concept of successor liability requires courts to

balance the equities of imposing a particular legal obligation in a particular situation.”). But the

facts here, even liberally construed in the plaintiffs’ favor, do not support the legal conclusion

that Duke Energy is actually Piedmont’s successor. The plaintiffs simply cannot escape the facts

that Piedmont remains in existence and is the entity that entered into and is bound by the 2004,

2008, 2012, and 2018 CBAs.

The caselaw to which the plaintiffs refer in their Response to the Motion to Dismiss,

indeed, establishes that the definition of a corporate successor is expanded in the context of cases

involving labor relations and employment disputes, but theses cases do not support the extension

of the concept as far as the plaintiffs would like. The primary case from the Sixth Circuit

discussing the concept of successor liability in the labor law context is Cobb v. Contract

Transportation, Inc. There, the Sixth Circuit held that a company could be a “successor”

company for purposes of liability on an FMLA claim, even where there was no continuity of

ownership or control and no merger or transfer of assets between the predecessor and successor

companies. 452 F.3d at 550. In Cobb, in fact, there was no relationship between the companies at

all, except that both the predecessor and successor companies had contracted with the United

States Postal Service to deliver mail between Philadelphia and Denver. When the successor

company was awarded the contract with the Postal Service, it kept a majority of the predecessor

company’s employees, including the plaintiff. The Sixth Circuit concluded that the defendant

was a “successor” employer under the FMLA, 29 U.S.C. § 2611(4)(A)(ii)(II). As a result, the

employee was an “eligible employee” under 29 U.S.C. § 2611(2)(A)(i),2 even though he had

technically been employed by the defendant company for less than twelve months, because he

had been employed by the predecessor for more than two years.

In reaching that decision, the court conducted a survey of the Supreme Court cases that

have developed the concept of successor liability in the labor relations context. First, in John

Wiley & Sons v. Livingston, 376 U.S. 543, 549 (1964), the Supreme Court had held that a

defendant corporation formed as the result of a corporate merger was bound by the arbitration

provision in the pre-merger corporation’s collective bargaining agreement. Although the Court

concluded that “the duty to arbitrate does not survive every corporate change, a ‘successor’

corporation will be bound by its predecessor’s duty to arbitrate where ‘there is a substantial

continuity in the identity of the business enterprise.’” Cobb, 452 F.3d at 552 (quoting John

2 An employee is “eligible” under the FMLA if he or she has been employed by the

“employer with respect to whom leave is requested” for a minimum of twelve months and at

least 1,250 hours of service. 29 U.S.C. § 2611(2)(A).

Wiley, 376 U.S. at 551). Notably, in that case, the predecessor corporation was no longer in

existence, having been dissolved through the merger.

Next, in NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972), the

Court clarified that a corporate defendant can be a successor for one purpose and not for another.

In that case, as in Cobb, there was no relationship between the predecessor and successor

companies, but the plaintiff union argued that the defendant, a security company for a third-party

manufacturing facility, was bound by the collective bargaining agreement executed by the

security company that had previously provided services for the same manufacturing facility. The

Court held that the new security company, which had hired all of the old company’s employees,

was not bound by the collective bargaining agreement but that it did have an obligation to

recognize the union’s authority and to negotiate with it. Id. at 279–87.

In Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973), the Supreme Court

“extended successor liability from negotiations and the imposition of collective bargaining

agreements to liability for unfair labor practices.” Cobb, 452 F.3d at 553 (citing Golden State,

414 U.S. at 172). There, the defendant was a bona fide purchaser of a business that, prior to the

acquisition, had committed an unfair labor practice by terminating an employee. Balancing all of

the equities, the Court found that the defendant was liable for reinstating the discharged

employee with back pay.

Finally, the Sixth Circuit noted in Cobb that it had extended successor liability from the

labor context to Title VII in EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th

Cir. 1974). In that case, the court “emphasized that ‘there is, and can be, no single definition of

“successor” which is applicable in every legal context.’ Successor liability questions must be

answered on a case by case basis, and ‘a new employer . . . may be a successor for some

purposes and not for others.’” Cobb, 452 F.3d at 554 (quoting MacMillian, 503 F.2d at 1089–

91).3

None of these cases has any application to the plaintiffs’ situation, for a simple reason.

Regardless of the extent to which they stretched the concept of a “successor,” they all involved a

change in the identity of the employer and some reason for imposing successor liability on the

new employer. As courts within this circuit and elsewhere have recognized, “[s]uccessor liability

enables claimants to seek recourse from the successor that has replaced or entirely taken over the

original entity.” In re Welding Fume Products Liab. Litig., No. 1:03-CV-17000, 2010 WL

2403355. at *7 (N.D. Ohio June 11, 2010). On the other hand, if the original entity has not gone

anywhere, “there is no successor—and no successor liability.” Id. (collecting cases).

Welding Fume is instructive here. In that case, a products liability action, the court

granted summary judgment to a parent corporation defendant, holding that it had no successor

liability where the subsidiary corporations “still exist[ed] and continue[d] to operate separately as

subsidiaries of the [parent].” Id. In their response in opposition to summary judgment, the

3 In addition to those cited above, the plaintiffs reference two additional cases that, they

claim, establish the breadth of the doctrine of successor liability when applied in the labor

context. (See Doc. No. 15, at 7 (citing Pension Benefit Guar. Corp. v. Findlay Indus., Inc., 902

F.3d 597 (6th Cir. 2018), cert. dismissed sub nom. Sept. Ends Co. v. Pension Ben. Guar. Corp.,

No. 18-1265, 2019 WL 1455808 (U.S. Aug. 2, 2019); Dupont Dow Elastomers, L.LC. v.

N.L.R.B., 296 F.3d 495 (6th Cir. 2002). In Findlay, the Sixth Circuit applied successor liability in

determining liability for unfunded pension liabilities under ERISA. Pension Benefit Guar. Corp.

v. Findlay Indus., Inc., 902 F.3d 597 (6th Cir. 2018), cert. dismissed sub nom. Sept. Ends Co. v.

Pension Ben. Guar. Corp., No. 18-1265, 2019 WL 1455808 (U.S. Aug. 2, 2019). The court held

that, “when there is a sale that is not conducted at arm’s length, successor liability can apply.

And although we are reluctant to impose successor liability to reorganizations of failing

businesses, that principle cannot be stretched so far as to demand judicial approval of deals that

are not above board.” 902 F.3d at 612. In Dupont Dow, the court applied Burns, holding only

that the employer in that case was a “perfectly clear successor” in an arms-length transaction

and, as such, was obligated to bargain with a union prior to fixing the terms and conditions of

employment but, as in Burns, had no obligations under the pre-existing collective bargaining

agreement. Dupont Dow, 296 F.3d at 506.

plaintiffs had also sought, in the alternative to successor liability, to hold the parent corporation

vicariously liable for the actions of the subsidiaries under a veil-piercing theory. They claimed

that, although the subsidiaries were still in existence, the parent corporation “largely ignored”

their corporate structures, such that the plaintiffs should be entitled to pierce the corporate veil

and reach the parent’s assets for compensation. Id. at *8. The court recognized this as a new

theory of liability: “Successor liability . . . and corporate veil-piercing, while based on many

overlapping factors, are separate legal doctrines with distinct legal consequences.” Id. (citation

omitted). In particular, veil-piercing speaks to “an existing relationship between the corporation

and its current owner,” while successor liability concerns “the relationship between the

corporation and its predecessor.” Id. (citation omitted). The court rejected the plaintiff’s veil-

piercing argument on the basis that the complaint did not allege facts to support a veil-piercing

theory of recovery. The plaintiffs did not, for example, allege any facts showing that the

corporations operated as a “single business enterprise” or that the parent was simply the “alter

ego” of the corporations. Id. (citations omitted). As a result, the complaint failed to state a claim

against the parent under a veil-piercing theory. Id. (citations omitted).

Construed together, these cases mean that successor liability does not provide an avenue

for relief here, because, although the plaintiffs use the word “successor” repeatedly in the

Complaint and also claim that, in its capacity as successor, Duke Energy is the individual

plaintiffs’ employer and is bound by the various collective bargaining agreements, the plaintiffs

do not allege facts showing that there was actually a change in the identity of their employer.

They have not alleged that Piedmont Gas has ceased to exist or that it was completely subsumed

by Duke Energy as a result of the acquisition. To the contrary, the plaintiffs affirmatively allege

that Piedmont Gas still exists, and the fact that Piedmont Gas is the entity that negotiated with

14

the Union and executed the 2018 CBA serves as confirmation of its continued separate existence.

In other words, what is at issue here is an existing relationship between a corporation—Piedmont

Gas—and its current owner—Duke Energy. As Welding Fume makes clear, this type of

relationship may give rise to a veil-piercing claim, but it does not accommodate a successor

theory of liability. However, the Complaint does not actually articulate a veil-piercing theory

either, nor have the plaintiffs alleged facts that, if true, would permit veil piercing—for example,

that Duke Energy is the alter ego of Piedmont Gas or disregards its corporate form.

Because the allegations in the Complaint fail to establish a basis for successor liability (or

veil-piercing), it fails to state a claim against Duke Energy for which relief may be granted. On

this basis alone, dismissal of the Complaint is warranted, though such dismissal will be without

prejudice to the plaintiffs’ ability to file a properly supported motion to amend their complaint to

name the appropriate defendant and/or allege facts that support claims against Duke Energy on

the basis of successor liability or veil piercing.t Having reached this conclusion, the court will

not address Duke Energy’s other arguments.

IV. CONCLUSION

For the reasons forth herein, the court will grant the Motion to Dismiss. An appropriate

Order is filed herewith. ff

Mid doag —

United States District Judge

4 In their Response to the Motion to Dismiss, the plaintiffs request that, in the alternative

to dismissal, they be granted “leave to amend the complaint to add Piedmont Natural Gas as a

named defendant” and to “plead additional facts to assert joint employer and/or alter ego

liability.” (Doc. No. 15, at 8.) The court does not construe this informal request as an actual

motion to amend, but the plaintiffs will have the ability to file such a motion.