# Petition for Writ of Certiorari — McCoy v. Massachusetts Institute of Technology > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0215%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 504 U.S. 910 ## Text -a : oe *« : - 2 _ 4 L Buprorne Court, us. | Bl-13 37 KILED | Meena. . In the Supreme Court of the United States OCTOBER TERM, 1991 JAMES L. McCOY, ADMINISTRATOR OF THE ELECTRICAL WORKERS TRUST FUNDS, LocaL 103 I.B.E.W., PETITIONER, Vv. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, RESPONDENT. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT PETITION FOR WRIT OF CERTIORARI KATHERINE A. HESSE Counsel of Record Davip W. HEALEY MurPHY, HESSE, TOOMEY & LEHANE 300 Crown Colony Drive Suite 410 Quincy, Massachusetts 02269-9126 (617) 479-5000 BOSTON, MASSACHUSETTS BATEMAN & SLADE. INC i QUESTIONS PRESENTED I. Whether trust funds established pursuant to § 302(c)(9) of the Labor Management Relations Act of 1947, as amended (“LMRA”), 29 U.S.C. § 186(c)(9), are as a matter of law necessarily “employee welfare benefit plan{s]” within the meaning of § 3(1) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1002(1). Il. Whether the First Circuit deviated from this Court’s precedents regarding review of motions to dismiss where it found the Educational Fund to be an employee welfare benefit plan despite no allegation in the complaint to that effect. [1]. Whether § 514(a) of ERISA pre-empts Massachusetts G.L. c. 254 which permits any person, including but not limited to general contractors, laborers, subcontractors, trustees of § 302 funds, who improves the property to file a lien upon the pool of funds left owed but unpaid under the contract between the owner of the property and the general contractor at the time the lien is filed and secured by the owner’s property. IV. Whether the remedy provided by Massachusetts G.L. c. 254 is a remedy permissible under Rule 64 of the Federal Rules of Civil Procedure and thereby saved from pre-emption by virtue of § 514(d) of ERISA. V. Whether Rule 64 of the Federal Rules of Civil Procedure. which incorporates by reference existing state law creditor prejudgment remedies creating substantive rights, would be rendered invalid by the Rules Enabling Act, 28 U.S.C. § 2072. VI. Whether § 515 of ERISA, 29 U.S.C. § 1145, and § 301(a) of the LMRA, 29 U.S.C. § 185(a), would be altered, amended. modified, invalidated, impaired or superseded by pre-emption of Massachusetts G.L. c. 254, and is thereby saved from pre-emption by virtue of § 514(d) of ERISA. ill PARTIES The petitioner for this writ of certiorari is James L. McCoy, Administrator of the Electrical Workers Trust Funds, Local 103 I.B.E.W. The respondent is the Massachusetts Institute of Technology. The petitioner was the appellant in the United States Court of Appeals for the First Circuit and the respondent was the appellee in that court. Vv TABLE OF CONTENTS QUESTIONS PRESENTED PARTIES ill TABLE OF AUTHORITIES Vi OPINIONS BELOW 2 STATEMENT OF JURISDICTION 2 STATUTORY PROVISIONS INVOLVED 2 STATEMENT OF THE CASE 3 A. Basis For Federal Jurisdiction 3 B. Factual Background 3 C. Procedural History 4 REASONS THE WRIT SHOULD BE GRANTED 5 1. The Decision Of The First Circuit That § 302(c)(9) Trust Funds Are Employee Welfare Benefit Plans As a Matter Of Law Is In Direct Conflict With § 3(1) of ERISA, § 302(c)(9) of the LMRA, The Department Of Labor’s Interpretation, And In- volves An Important Issue of Federal Law War- ranting This Court’s Review 5 Il. The First Circuit Deviated From This Court's Pre- cedents Regarding Review Of Motions To Dismiss In Finding The Educational Fund To Be An Em- ployee Welfare Benefit Plan Despite No Allega- tion In The Complaint To That Effect 8 lI. The Continued Disregard By Courts Of Appeal Of Congressional Intent To Preserve State Law Col- lection Remedies Is Contrary To This Court's Pre- nn ene eR ERE EN nn vi TABLE OF CONTENTS (cont.) emption Analysis And Is Depriving ERISA plans Of The Ability To Collect Contributions, Warrant- ing This Court’s Review 9 IV. The Court Should Grant Certiorari To Correct The First Circuit’s Misapplication Of This Court’s Decision In Mackey v. Lanier Collection Agency & Service, Inc. And To Resolve The Conflict Among Courts Over This Issue 14 V. The Court Should Grant The Writ Of Certiorari To Review The First Circuit’s Erroneous Decision That Chapter 254 Is Not A Remedy Included In Rule 64 Of The Federal Rules Of Civil Procedure And Saved From Pre-emption By § 514(d) Of ERISA 17 VI. The Pre-emption Of State Mechanics’ Lien Statutes Undermines And Impairs Federal Labor And Pension Laws Which Have Long Depended On Mechanics’ Liens, Bonding And Other State Statutes To Enforce The Collective Bargaining Obligations Of Employers, And Are Therefore Saved From Pre-emption By § 514(d) of ERISA 24 CONCLUSION 25 APPENDICES follows page 25 TABLE OF AUTHORITIES CASES Brennan v. Silvergate Dist. Lodge No. 50, Inter. Assoc. of Machinists and Aerospace Workers, AFL-CIO, 503 F.2d 800 (9th Cir. 1974) 21 Vil TABLE OF AUTHORITIES (cont.) Bricklayers and Allied Craftsmen Intern. Union Local 33 Benefit Funds v. America’s Marble Source, Inc., F.2d , 1991 WL 253389 (3rd Cir. 1991) Burlington Northern Railroad Co. v. Woods, 480 Uo. 1 (1987) Carpenters §. Cal. Admin. Corp. v. El Capitan Dev. Co., 53 Cal.3d 1041, 282 Cal.Rptr. 277, 811 P.2d 296 (Cal. 1991), cert. denied, U.S. , 8 S.Ct. 430 (1991) Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962) Conley v. Gibson, 355 U.S. 41 (1957) Daily Income Fund v. Fox, 464 U.S. 523 (1984) Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) Fontenot v. Roach, 120 F. Supp. 788 (E.D. Tenn. 1954) Friedman v. County of Hampden, 204 Mass. 494, 90 N.E. 851 (1910) Fuentes v. Shevin, 407 U.S. 67 (1972) Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 (1979) Granny Goose Foods, Inc. v. Brotherhood of Team- sters & Auto Truck Drivers, 415 U.S. 423 (1974) Huron Holding Corp. v. Lincoln Mine Operating Co., 312 U.S. 183 (1941) Idaho Plumbers and Pipefitters Health and Welfare Fund v. United Mechanical Contractors, Inc., 875 F.2d 212 (9th Cir. 1989) 10 Vill TABLE OF AUTHORITIES (cont.) Ingersoll-Rand Company v. McClendon, U.S. ; 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) 10 Iron Workers Mid-South Pension Fund v. Terotechnol- ogy Corp., 891 F.2d 548 (Sth Cir.), cert. denied, 110 S.Ct 3272 (1990) 10 Kamen v. Kemper Financial Services, Inc., U.S. , 111 S.Ct. 1711 (1991) 19,20 Kend v. Chroma-Glo, Inc., 51 F.R.D. 547 (D. Minn. 1970), aff'd, 478 F.2d 198 (8th Cir. 1973) 21 Mackey v. Lanier Collection Agency & Serv. Inc., 486 U.S. 825 (1988) 13,14,15, 16,17,18,19,23 Ospina v. Vanelli, 34 F.R.D. 151 (D. Minn. 1964) 22 Peters v. Hartford Accident and Indemnity Company, 377 Mass. 863, 389 N.E.2d 63 (1979) 15,17 Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) 9 Plumbers Local 458 Holiday Vacation Fund v. Howard Immel, Inc., 151 Wis.2d 233, 445 N.W.2d 43 (Wis. App. 1989) 10,12,16 Quinones v. Szorc, 771 F.2d 289 (7th Cir. 1985) 9 Retirement Fund of the Fur Manufacturing Industry v. Getto & Getto, Inc., 714 F. Supp. 651 (S.D.N.Y. 1989) 12 Sasso v. Vachris, 66 N.Y.2d 28, 484 N.E.2d 1359, 494 N.Y.S.2d 856 (1985) 10,12 Scheuer v. Rhodes, 416 U.S. 232 (1974) 8,9 Schneider Moving and Storage Company v. Robbins, 466 U.S. 364 (1984) 24 Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) 9. 16,18,24 iX TABLE OF AUTHORITIES (cont.) Sturgis v. Herman Miller, Inc., 943 F.2d 1127 (9th Cir. 1991) 10 Textile Workers Union of America v. Lincoln Mills of Ala., 353 U.S. 448 (1957) 24 STATUTES AND RULES Section 3(1) of ERISA, 29 U.S.C. § 1002(1) £,90,1 Section 502(g)(2} of ERISA, 29 U.S.C. § 1132(g)(2) 2,10, 11,12,13,14,15 Section 505 of ERISA, 29 U.S.C. § 1135 2,5 Section 514(a) of ERISA, 29 U.S.C. § 1144(a) 2,4,9, 12,13,15,16,18 Section 514(d) of ERISA, 29 U.S.C. § 1144(d) 2,4,17, 18,24,25 Section 515 of ERISA, 29 U.S.C. § 1145 2,10,11, 12.13,14,.24.25 Section 301 (a) of the LMRA, 29 U.S.C. § 185(a) = 2,18,.24.25 Section 302(c) of the LMRA, 29 U.S.C. § 186(c) 2.5.6.7. 8,15,16,24 Section 6 of the Labor Management Cooperation Act of 1978 3,6 28 U.S.C. § 1254(1) 2 28 U.S.C. § 1331 3 28 U.S.C. § 144] 3 28 U.S.C. § 1447(c) 3,4 X TABLE OF AUTHORITIES (cont.) 28 U.S.C. § 2072 2,17,19,21,22 28 U.S.C. § 2101(c) 2 Federal Rules of Civil Procedure Rule 12(b)(6) 4.8 Rule 64 2,4,17,18,19,21,22,23 Rule 69(a) 2,19,21,23 Massachusetts General Laws c. 254, § 1 2 c. 254,§4 2,6,15,16,17 LEGISLATIVE HISTORY Senate Labor and Finance Committee (s. 1076), 126 Cong. Rec. p. 20202 1] House Ways and Means Committee (H.R. 3904), 1980 U.S. Code Cong. & Ad. News, p. 2918, 3038 11,12 126 Cong. Rec. p. 20180 (statements of Senators Matsunaga and Williams) 13 126 Cong. Rec. p. 23288 (statement of Senator Williams) 13 REGULATIONS AND OPINIONS - DOL ERISA Adv. Op. 91-08A A DOL ERISA Adv. Op. 84-40A 3,5,7 OTHER AUTHORITIES MOORE’S FEDERAL PRACTICE, par. 64.03 at p. 64-8 (1983) 21 , Bonds, Liens & Insurance, Federal Publications (1986) No. - In the Supreme Court of the United States OCTOBER TERM, 1991 JAMES L. McCOY, ADMINISTRATOR OF THE ELECTRICAL WORKERS TRUST FUNDS, LocaL 103 I.B.E.W.., PETITIONER, vs MASSACHUSETTS INSTITUTE OF TECHNOLOGY, RESPONDENT. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITEDSTATES COURT OF APPEALS FOR THE FIRST CIRCUIT PETITION FOR WRIT OF CERTIORARI Petitioner, James L. McCoy, Administrator of the Electrical Workers Trust Funds, Local 103 I.B.E.W., respectfully prays that a writ of certiorari issue to review the decision of the United States Court of Appeals for the First Circuit entered in this case on November 19, 1991. 2 OPINIONS BELOW The opinion of the United States Court of Appeals for the First Circuit has not yet been officially reported, but has been reported at 14 Employee Benefit Cases 1874. The opinion of the District Court upon which this appeal is based is reported at 760 F. Supp. 12 (D. Mass. 1991). Both opinions are re- printed in the Appendix to this petition ( Appendix A and C). STATEMENT OF JURISDICTION The United States Court of Appeals for the First Circuit issued an opinion affirming the judgment of the District Court on November 19, 1991 and judgment entered that same day (Appendix B, infra). Petitioner seeks review of this judgment pursuant to 28 U.S.C. § 1254(1). This petition is timely filed with this Court under the provisions of 28 U.S.C. § 2101(c). STATUTORY PROVISIONS INVOLVED The relevant statutory provisions are: (1) Massachusetts G.L. c. 254, § 4; Massachusetts G.L. c. 254, § 1: § 502(g)(2) of Employee Retirement Income Security Act of 1974, as amended (hereinafter “ERISA”), 29 U.S.C. § 1132(g)(2); § 505 of ERISA, 29 U.S.C. § 1135; § 514(a) of ERISA, 29 U.S.C. § 1144(a); § 514(d) of ERISA, 29 U.S.C. § 1144(d); § 51S of ERISA, 29 U.S.C. § 1145; § 3(1) of ERISA, 29 U.S.C. § 1002(1); § 301 (a) of the Labor Management Relations Act of 1947, as amended (hereinafter “LMRA”), 29 U.S.C. § 185(a); § 302(c) of the LMRA, 29 U.S.C. § 186(c); 28 U.S.C. § 2072, Rules 64 and 69(a) of the Federal Rules of Civil 3 Procedure: § 6 of the Labor Management Cooperation Act of 1978 (hereinafter “LMCA”), 90 Stat. 2020; Department of Labor (“DOL”) Adv. Op. 91-08A; DOL Adv. Op. 84-40A. These statutes and opinions are set forth in Appendix F,G and H, infra. STATEMENT OF THE CASE A. BASIS FOR FEDERAL JURISDICTION The basis for federal court jurisdiction is at issue in this action. This action, originally filed by petitioner James L. McCoy in state court, was removed purportedly pursuant to 28 U.S.C. $1331 and § 1441. Respondent Massachusetts In- stitute of Technology moved to dismiss petitioner's complaint and petitioner moved to remand pursuant to 28 U.S.C. § 1447 (c). The district court granted respondent's motion to dismiss based solely on ERISA pre-emption grounds and denied petitioner's motion to remand. B. FACTUAL BACKGROUND James L. McCoy (hereinafter “McCoy”) is the administrator and/or agent of various trust funds established pursuant to the requirements of 29 U.S.C. § 186, including pension, annuity, health and welfare, holiday, vacation and supplementary un- employment, apprenticeship and educational funds (hereinafter the Funds”) (Appendix E, infra). S.N. Brown Electrical Corp. was a subcontractor performing work on property owned by the Massachusetts Institute of Technology (hereinafter “MIT”). S_N. Brown Electrical Corp. was also an employer obligated to make contributions to the Funds under a collective bargain- ing agreement on behalf of workers who performed labor on MIT's property. S.N. Brown Electrical Corp. became delinquent ee 4 and failed to make these contributions, in an estimated principal amount of $30,000. On May 23, 1990, McCoy filed a Notice of Contract in the Middlesex County Registry of Deeds pur- suant to the statutory provisions of Massachusetts G.L. c. 254, § 4 and thereafter filed a Sworn Statement of Account and a complaint to enforce the lien pursuant to the provisions of Chapter 254 in Massachusetts state court. C. PROCEDURAL HISTORY The complaint to enforce the lien was filed by McCoy on July 17, 1990 in the Middlesex Superior Court, Middlesex County, Cambridge, Massachusetts and was subsequently re- moved to the United States District Court for the District of Massachusetts on or about August 7, 1990. MIT filed a motion to dismiss McCoy’s complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civi! Procedure arguing that Massachu- setts G.L. c. 254 was pre-empted by § 514(a) of ERISA. McCoy moved to remand the action back to the state court from which it was removed pursuant to 28 U.S.C. § 1447(c), arguing that ERISA did not pre-empt Massachusetts G.L. c. 254. McCoy also argued that even if § 514(a) pre-empts Massachusetts G.L. c. 254, pre-emption applies only to those funds which were employee benefit plans covered by ERISA, and the educational fund was not alleged to be and was not such a plan. Finally, McCoy argued that Chapter 254 was saved from pre-emption by § 514(d) of ERISA, because pre-emption would modify or impair federal law, namely Rule 64 of the Federal Rules of Civil Proce- dure. Oppositions were timely filed by McCoy to the motion to dismiss and by MIT to the motion to remand. On March 5, 1991, judgment was entered by the district court denying McCoy’s motion to remand and allowing MIT's motion to dismiss, by Memorandum and Order dated March 1, 1991 (Appendix D, infra). McCoy timely filed his appeal to the United States Court of Appeals for the First Circuit on 5 March 29, 1991. On November 19, 1991, the United States Court of Appeals for the First Circuit affirmed the district court’s decision (Appendix B, infra). REASONS THE WRIT SHOULD BE GRANTED I. The Decision Of The First Circuit That § 302(c)(9) Trust Funds Are Employee Welfare Benefit Plans As A Matter Of Law Is In Direct Conflict With § 3(1) of ERISA, § 302(c)(9) of the LMRA, The Department Of Labor’s Interpretation, And Involves An Important Question of Federal Law Warranting This Court’s Re- view. The determination of which types of trust funds are or are not subject to the requirements of Title I of ERISA are impor- tant questions of federal law with significant ramifications for those funds and those who advise them. Prior to the First Circuit's decision, no court or federal agency had ever before held that trust funds established pursuant to § 302(c)(9) of the LMRA, 29 U.S.C. § 186(c)(9), were “employee welfare bene- fit plan[s]” as defined by § 3(1)(B) of ERISA, 29 U.S.C. § 1002(1)(B). Indeed the federal agency charged with inter- preting ERISA had specifically opined on two separate occa- sions that § 302(c)(9) funds were not employee welfare benefit plans subject to Title I of ERISA. ' In finding all § 302(c) plans and specifically the Electrical Workers Educational and Cultural Fund, Local 103 I.B.E.W. (the “Educational Fund”), a § 302(c)(9) trust, to be an employee welfare benefit plan despite the lack of any allegation in the The Department of Labor is given the authority to interpret Title | of ERISA by § 505 of ERISA, 29 U.S.C. § 1135. As the federal agency charged with implementing and interpreting Title | of ERISA, the Department's consistent and longstanding interpretation of § 3(1) of ERISA “commands considerable deference.’ Gladstone, Realtors \ Village of Bellwood, 441 U.S. 91. 107 (1979). DOL Adv. Op. 91-08A and 84-40A are set forth in Appendix F andG 6 complaint to that effect,? the First Circuit misconstrued § 3(1)(B) of ERISA and 302(c)(9) of the LMRA and ignored the Department of Labor's interpretation of § 3(1)(B) of ERISA. This important question of federal law warrants this Court’s review. Section 302(a) of the LMRA as enacted in 1947 prohibited employers from making payments or giving anything else of value to unions and their representatives and provided criminal penalties for violation of its provisions. Congress provided various exceptions from this prohibition in § 302(c). Section 302(c)(9) was added by P.L. 95-524, 90 Stat. 2020, the Labor Management Cooperation Act of 1978 (hereinafter the (“LMCA”). Section 6(d) of the LMCA amended § 302(c) of the LMRA by adding an exception to the prohibitions of 302(a) of the LMRA “with respect to money or other things of value paid by an employer to a plant, area or industry-wide labor management committee established for one or more of the purposes set forth in § 5(b) of the Labor Management Coop- eration Act of 1978.”* Unlike employee benefit plans under Title | of ERISA, Congress in § 6 of the LMCA charged the Federal Mediation and Conciliation Service with oversight re- sponsibility with respect to the LMCA rather than the Depart- ment of Labor. Both the district court and the First Circuit read § 3(1)(B) of ERISA to mean that all § 302(c) funds must be “employee welfare benefit plan[s].” Section 3(1 )(B) defines an “employee welfare benefit plan” as “any benefit described in § 302(c) of >To state a claim under Massachusetts G_L. c. 254, § 4, there is no need to allege whether a plaintiff is an employee benefit plan, or subject to the requirements of ERISA. The complaint, a copy of which is contained in Appendix E, never alleged that the Funds were employee benefit plans, or that they were subject to the requirements of ERISA, or that they provided benefits or employee benefits. ‘The reference to § 5(b) should read § 6(b), which contains the permissible purposes of § 302(c)(9) funds. Section 6 of the LMCA is reprinted in the Appendix. 7 the Labor Management Relations Act, 1947 (other than pen- sions on retirement or death, and insurance to provide such pensions).” The First Circuit’s reading of this section is flawed on two points. First, § 3(1)(B) was enacted in 1974 and there- fore cannot be taken to include § 302(c)(9) which was added in 1978, especially where the reference to the LMRA in § 3(1)(B) is oniy to the LMRA as originally enacted, with no reference to amendments to the 1947 act. Second, by its own terms § 3(1)(B) applies only to “any benefit” described in § 302(c). Unlike § 302(c)(5), (6), (7) and (8), there is no requirement that § 302(c)(9) funds provide any benefits to employees of the employer. The two times the Department of Labor has had occasion to interpret § 3(1)(B) of ERISA with respect to § 302(c)(9) funds, it found the § 302(c)(9) funds not to be employee welfare benefit plans as defined by § 3(1)(B) of ERISA. DOL Advisory Op. 91-08A and 84-40A (Appendix F and G, infra). In DOL Advisory Op. 91-08A, the Department of Labor stated that “. . . it is the Department’s position that § 3(1)(B) of ERISA does not mean that every arrangement described in § 302(c) of the Labor Management Relations Act of 1947 (the LMRA) constitutes an employee welfare benefit plan within the meaning to [sic] § 3(1) of ERISA.” (App. A45-A46). The First Circuit, however, concluded: “The complaint states that all the plans were ‘established pursuant to the requirements of 29 U.S.C. § 186.’ The plans are, therefore, employee welfare benefit plans within ERISA’s purview.” (footnote omitted). (App. A18). The Department of Labor’s interpretation of § 3(1)(B) of ERISA is in direct conflict with the First Circuit’s interpretation. The First Circuit erroneously interpreted § 3(1)(B) of ERISA to include § 302(c)(9) funds. Furthermore, it did so on a motion to dismiss, despite the absence of any allegation that such funds provide benefits to employees and despite the contrary interpretation given § 3(1) by the Department of Labor. Given 8 the importance of this question to trustees of § 302(c)(9) funds, not only with respect to their right to file mechanics’ liens, but also the uncertainty created as to whether § 302(c)(9) funds need to comply with the requirements of Title I of ERISA, the Court should grant certiorari to review the First Circuit’s decision. Il. The First Circuit Deviated From This Court’s Prece- dents Regarding Review Of Motions To Dismiss In Finding The Educational Fund To Be An Employee Welfare Benefit Plan Despite No Allegation In The Complaint To That Effect. McCoy’s complaint contained no allegation that any of the Funds were employee benefit plans. The complaint nowhere alleged that the Funds were subject to ERISA, or that any of the Funds provided benefits to participants and beneficiaries. Notwithstanding the absence of any allegations in the complaint that could lead one to conclude the Educational Fund was an employee welfare benefit plan, the district court so found and the First Circuit affirmed. This Court stated the standard of review applicable to reviewing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure in Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). That standard requires that the allegations of the complaint are taken as true and construed in a light most favorable to the non-movant. “In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dis- missed’ for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), quoting Conley v. Gibson, 355 US. 41, 45-46 (1957) (footnote omitted). In complete disregard for this standard, both the district court and the First Circuit construed the complaint as if the Educational Fund had beeh alleged to be an employee benefit plan. Having turned on ifs head the standard of review appli- cable to a motion to dismiss by viewing the complaint in a light least favorable to/the petitioner, the First Circuit then proceeded to saddle the/petitioner with the burden of disproving the affirmative defens¢ of pre-emption, by finding that McCoy failed to proffer evidence and argument that the Educational Fund was not an eynployee benefit plan before the district court.* Such a departure from this Court’s established standard for reviewing a motjon to dismiss warrants this Court’s review. lil. The Continued Disregard By Courts of Appeal Of Congressional Intent To Preserve State Law Collec- tion Remedies Is Contrary To This Court’s Pre-emp- tion Analysis And Is Depriving ERISA Plans Of The Ability To Collect Contributions, Warranting This Court’s Review. Each time the Court has considered whether § 514(a) of ERISA pre-empts a state law, it has stated the purpose of Congress to be “the ultimate touchstone.” Pilot Life Ins. Co. Vv. Dedeaux, 481 U.S. 41, 45 (1987). “In deciding whether a federal law preempts a state statute, our task is to ascertain Congress’ intent in enacting the federal statute at issue.” Shaw Vv. Delta Air Lines, Inc., 463 U.S. 85, 95 (1983). Recently the ‘The First Circuit discusses at length that petitioner should have argued at greater length before the district court and apparently taken greater effort to prove the Educational Fund was not an employee welfare benefit plan (App. A16-A18). These statements overlook that MIT had the burden of proof with respect to its pre-emption affirmative defense and not the petitioner. Further- more, a motion to dismiss tests only the sufficiency of the pleading; the petitioner need prove nothing at this stage. Scheuer v. Rhodes. 416 US. at 236. The petitioner did argue that preemption under § 514(a) of ERISA applies only if the Educational Fund is an employee benefit plan, and pointed out that it is not and was not alleged to be such a plan. In Opposing a motion to dismiss, no more was needed. Quinones v. Szorc, 771 F.2d 289, 291 n.3 (7th Cir. 1985) (stating that “‘[i]t is axiomatic that, to withstand a motion to dismiss, a plaintiff Is not required to provide evidence of or prove the truthfulness of his complaint.”’) 10 Court reaffirmed this principle: “‘[T]he question whether a certain state action is pre-empted by federal law is one of congressional intent. The purpose of Congress is the ultimate touchstone.’” /ngersoll-Rand Company v. McC lendon, 498 U.S. 111 S.Ct 478, 112 L.Ed.2d 474 (1990). The First Circuit’s decision, however, as well as decisions by other Circuit Courts of Appeal,° have disregarded or discounted Con- gressional statements that ERISA was intended to supplement, not to supercede, state laws used in the collection of contribu- tions by multi-employer plans. Congress considered the pre-emption of state law collection remedies when it amended ERISA in 1980 to add §§ 502(g)(2) and 515 to provide a cause of action to collect delinquent contributions owed to multiemployer plans.° Congressional statements from both the House Ways and Means Committee and the joint explanation of the Senate Labor and Finance Com- mittee indicate that state collection remedies would not be superseded by this new ERISA cause of action. The joint ex- ‘The pre-emption of state mechanics’ lien statutes has been considered by three other United States Courts of Appeal which in each case found the state statute involved pre-empted by ERISA. See Bricklayers and Allied Craftsmen Intern. Union Local 33 Benefit Funds v. America’s Marble Source, Inc., F.2d 1991 WL 253389 (3rd Cir. 1991); Sturgis v. Herman Miller, Inc., 943 F.2d 1127 (9th Cir. 1991); Iron Workers Mid-South Pension Fund vy. Terotechnology Corp., 891 F.2d 548 (Sth Cir.), cert. denied, 110 S.Ct. 3272 (1990). A majority of the California Supreme Court found its statute pre-empted. Carpenters §. Cal. Admin. Corp. v. El Capitan Dev. Co., 53 Cal.3d 1041, 282 Cal.Rptr. 277, 811 P.2d 296 (Cal. 1991), cert. denied, US. 112 S Ct. 430 (1991). A Wisconsin appellate court found the Wisconsin state mechanic’s lien statute not to be pre-empted by ERISA. Plumbers Local 458 Holiday Vacation Fund v. Howard Immel, Inc., 151 Wis.2d 233, 445 N.W.2d 43 (Wis.App. 1989). *ERISA as originally enacted did not contain collection remedies for mul- tiemployer trust funds. As a result, there is an absence of any Congressional statements concerning the scope of pre-emption with respect to state law col- lection remedies. The legislative history to the Multiemployer Pension Plan Amendments Act of 1980 appears to contain the first discussion of pre-emption in the context of state law collection remedies. Prior to the 1980 amendments, courts had permitted collection of multiemployer contributions to be made under state or federal law. See Sasso v. Vachris, 66 N.Y .2d 28. 484 N.E.2d 1359. 494 N.Y.S.2d 856, 860 (1985) (and cases cited) planation of the Senate Labor and Finance Committee to the Senate bill (S. 1076) concerning § 515 and § 502(g)(2) of ERISA stated: This [the amendments to ERISA] does not change any other type of remedy permitted under state or federal law with respect to delinquent multiemployer plan contributions. (126 Cong. Rec. p. 20202, App. A65). A similar statement is contained in the Report of the House Ways and Means Committee on the companion House bill (H.R. 3904) to the Senate version cited above: The Committee’s amendment provides that in the case of a civil action by any person to collect delin- quent multiemployer plan contributions, regardless of otherwise applicable law, the court before which the action is brought may award the plaintiff (1) reasonable attorney’s fees, (2) court costs, and (3) liquidated damages not to exceed 20 percent of the amount of delinquent contributions as determined by the court. However, these items are to be awarded to a plaintiff only to the extent that the multiemployer plan in question provided for such an award. The bill preempts any State or other law which would prevent the award of reasonable attorney's fees, court costs or liquidated damages or which would limit liquidated damages to an amount below the 20 per- cent level. However, the bill does not preclude the award of liquidated damages in excess of the 20 percent level where an award of such a higher level of liquidated damages is permitted under applicable State or other law. The Committee amendment does not change any other type of remedy permitted under 12 State or Federal Law with respect to delinquent mul- tiemployer plan contributions. (H.R. Rep No. 889, 96th Cong., 2d Sess., Part II 48-49, reprinted in 1980 U.S. Code Cong. & Ad. News 2918, 3038) (emphasis supplied). At least two appellate courts have de- clined to find pre-emption under ERISA based upon these Congressional statements. See Idaho Plumbers and Pipefitters Health and Welfare Fund v. United Mechanical Contractors, Inc., 875 F.2d 212 (9th Cir. 1989) (“The legislative history indicates that § 1132(g)(2) does not preempt alternative con- tractual remedies.’’); Sasso v. Vachris, 66 N.Y.2d 28, 484 N.E.2d 1359, 494 N.Y.S.2d 856 (1985). In analyzing this legislative history, the court in Sasso concluded: Thus, it is clear that both Houses of Congress viewed the enforcement amendments of 1980 as setting forth a floor of federal remedy in the case of delinquent contributions below which the states could not go but which did not preempt or supersede state rem- edies that granted greater protection than that con- tained in ERISA. Notably, this language in the legis- lative history also conflicts with the view that § 514(a) of ERISA preempts state remedies and pro- vides additional support for our view that ERISA was never meant to preempt state enforcement stat- utes... Sasso v. Vachris, supra at n.3. See also Plumbers Local 458 Holiday Vacation Fund v. Howard Immel, Inc., 151 Wis.2d 233, 445 N.W.2d 43 (Wis.App. 1989); Retirement Fund of the Fur Manufacturing Industry v. Getto & Getto, Inc., 714 F. Supp. 651 (S.D.N.Y. 1989). Congressional statements repeatedly emphasized that Con- gress enacted § 502(g)(2) and § 515 of ERISA to strengthen 13 collection of delinquent contributions, as stated by Senator Williams in commenting on H.R. 3904 and § 502(g)(2) and § 515: The public policy of this legislation to foster the private multiemployer plan system necessitates that provision be made to discourage delinquencies and simplify delinquency collection. The bill imposes a Federal statutory duty to contribute on employers that are already obligated to make contributions to multiemployer plans. . . . The intent of this section is to promote the prompt payment of contributions and assist plans in recovering the costs incurred in connection with delinquencies. 126 Cong. Rec. p. 23288. Without review by this Court, the most effective collection remedies used by multiemployer plans will become unavaila- ble, a result certainly not intended by Congress, which ap- peared to count upon state law remedies remaining available to supplement the new federal remedies.’ As the First Circuit itself acknowledges in its decision, none of the concerns that motivated Congress to enact § 514(a) of ERISA are implicated by the pre-emption of state collection remedies." On the contrary, It appears from the legislative history already quoted that Congress assumegl thet state law collection remedies would be available to supplement the ngs federal remedies being added by § 502(g)(2) and § 515 of ERISA. This con- clusion is reinforced by the following colloquy between Senator Williams and Matsunaga: “MATSUNAGA. . . . One final question. . The bill directs the courts in delinquency cases to award a plan which wins judgment not only the delinquent contributions, but other costs and damages as well. Do these provisions constitute a maximum as well as a minimum restriction on the relief available to plans? Mr. WILLIAMS. . . . The provisions as we drafted and intended them, are 4 minimum but not a maximum.” 126 Cong. Rec. p. 20180. ‘The First Circuit appeared to disregard Congressional intent based upon its belief that it was bound by dicta in this Court’s decision in Mackey v. Lanier Collection Agency and Service, Inc., 486 U.S. 825 (1988) (App. A9-A10). 14 pre-emption of such laws undermines the ability of mul- tiemployer funds to collect contributions, thereby threatening the solvency of such plans, precisely the concern of Congress in passing ERISA and the MPPAA.” It is time the Court re- viewed this important issue of federal law which threatens to leave multiemployer plans without effective remedies to collect contributions owed by employers. IV. The Court Should Grant Certiorari To Correct The First Circuit’s Misapplication Of This Court’s Deci- sion In Mackey v. Lanier Collection Agency & Service, Inc. And To Resolve The Conflict Among Courts Over This Issue. The First Circuit found pre-emption of Massachusetts G.L. c. 254 based upon footnote 12 of this Court’s decision in Mackey v. Lanier Collection Agency and Service, Inc., 486 U.S. 825, 838 (1988). There the Court stated: It is not incongruous to find that Ga. Code Ann. § 18-4-20 (Supp. 1987), which provides for garnish- ment of ERISA welfare benefit plans, escapes pre- emption under ERISA, while striking down § 18-4- 22.1 — an exception to the general state-law provi- “The federal cause of action added by Congress in § 515, and the damages provided by § 502(g)(2), are only useful against a solvent employer. In the majority of cases, like the case now before the Court, the employer is delinquent because it is in financial distress or bankruptcy, and multiemployer plans are generally but one of many creditors seeking to collect against a limited pool of assets. Unless multiemployer plans have the same state prejudgment security devices as do other creditors, their ERISA judgments will frequently be uncol- lectible once obtained, because other creditors were able to obtain liens on property that they could not. It is remarkable that ERISA-plans are the only class of creditors on construction projects who, if the First Circuit's decision is allowed to stand, cannot lien the pool of funds held to pay general contractors, subcontractors, laborers and material suppliers, and that it is ERISA, the federal statute Congress intended to be the salvation of employee benefit plans, which strikes them down. 15 sion — as pre-empted. While we believe that state- law garnishment procedures are not pre-empted by § 514(a), we also conclude that any state law which singles out ERISA plans, by express reference, for special treatment is pre-empted. See part II, supra. It is this “singling out” that pre-empts the Georgia anti-garnishment exception. The First Circuit erroneously interpreted footnote 12 to mean that even state laws which do not single out ERISA plans for special treatment are nonetheless pre-empted where the state law permits ERISA plans to have the same lien rights as other lien claimants. The First Circuit's reading of Mackey would preclude states from permitting § 302(c) trusts to use the same state lien and collection statutes generally applicable and used by other lien claimants or creditors. It would be incongruous, and undermine the very protection Congress sought to give plans by its enactment of ERISA, to read Mackey as meaning that state creditor and collection laws of general applicability are pre-empted only when used by ERISA plans and not when used against ERISA plans. Massachusetts G.L. c. 254 does not contain any provisions unique to ERISA plans or which in any way attempt to regulate such plans. Section 4 of Chapter 254 simply permits trustees of § 302(c) funds to file liens in the same manner as any other lien claimant on privately owned construction projects in Massachusetts. There is no singling out of ERISA plans for special treatment.'’ A better reading of “An amendment to Massachusetts G.L. c. 254, § 4 was enacted in 1984 to provide that § 302 funds have the same lien rights as other persons under Chapter 254. The amendment was not necessary to the Funds’ enforcement of such liens. See Peters v. Hartford Accident and Indemnity Company, 377 Mass. 863, 389 N.E.2d 63, 66 (1979) (stating Chapter 254 and complementary bonding statute provide protection for all creditors of either the original contrac- tor or of a subcontractor of any degree, for labor performed or furnished, or for material furnished and actually used in the scope of the general contract.) The First Circuit's decision to preclude use of a general statute governing 16 this Court’s decision in Mackey is set forth in Plumbers Local 458 Holiday Vacation Fund v. Howard Immel, Inc., 151 Wis.2d 233, 445 N.W.2d 43, 46 (Wis.App. 1989). There the court, in describing the Wisconsin statute, declined to find pre-emption of a general mechanics’ lien statute simply because ERISA-plans may also be a creditor or claimant under the statute: It is a remedy available to a certain class of creditors that transcends ERISA obligations and concerns. While one may readily understand court decisions holding that the collection of ERISA obligations may not be directed by state law, a decision holding that no general creditor’s remedies may be utilized to collect judgments held by ERISA-regulated plans would be unfathomable. This holding would often leave funds without the means to enforce judgments. The First Circuit’s focus on footnote 12 caused it to overlook the holding of the Court in Mackey. There the Court concluded that “state-law methods for collecting money judgments must, aS a general matter, remain undisturbed by ERISA. . . .” /d. at 834. This Court has also stated that “|s]ome state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law “relates to” the plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n.21 (1983). Chapter 254, which imposes no obligations upon ERISA plans or in any way regulates them, certainly has less effect upon ERISA plans than the garnishment statute found by the Court in Mackey not to be pre-empted by § 514(a) construction on Massachusetts’ private property is not warranted by footnote 12 of Mackey, even if it were, the First Circuit should merely have struck the § 302 clause, and permitted petitioner to prove entitlement under the statute without it. 17 of ERISA.'' The Court should grant certiorari to correct the First Circuit’s misapplication of this Court’s decision in Mac- key. V. The Court Should Grant The Writ Of Certiorari To Review The First Circuit’s Erroneous Decision That Chapter 254 Is Not A Remedy Included In Rule 64 Of The Federal Rules Of Civil Procedure And Saved From Pre-emption By § 514(d) of ERISA. While the First Circuit correctly concluded that Rule 64 of the Federal Rules of Civil Procedure is a federal law within the meaning of § 514(d) of ERISA, 29 U.S.C. § 1144(d), it erroneously held the lien provided by Massachusetts G.L. c. 254, § 4 was not the type of remedy provided by Rule 64 because it held Chapter 254 would abridge, enlarge or modify substantive rights in violation of the Rules Enabling Act, 28 U.S.C. § 2072(b) (App. A14-A15).'? The First Circuit's deci- ‘If a general garnishment statute is not pre-empted and can be used by or against ERISA plans, as the Court concluded in Mackey, the addition of a reference that ERISA plans can use the statute like any other creditor should not trigger pre-emption, especially where ERISA plans were permitted to and did use the state law prior to the reference. See Peters v. Hartford Accident and Indemnity Company, 377 Mass. 863, 389 N.E. 2d 63, 66 (1979). * The First Circuit's opinion leaves unanswered how respondent's substantive rights were affected where, like a garnishee, it is not required to pay anything out of its own pocket if it complies with the lien. G.L. c. 254, § 4 expressly provides that the lien is not created until notice has been given to the owner and that the amount of the lien cannot exceed the amount unpaid under the owner's contract with the general contractor at the time it receives notice. In other words, respondent's status is no different than the subject of the garnish- ment orders found not to be pre-empted by Mackey. Chapter 254 is a lien equivalent to the garnishment expressly permitted under Rule 64. Only if respondent ignores the lien will it be liable out of its own property. Thus even it Chapter 254 affects substantive rights, which is doubtful, it does so only incidentally. And Federal Rules of Civil Procedure which may incidentally affect a litigant’s substantive rights do not violate the Rules Enabling Act if the rule is reasonably necessary to maintain the integrity of the system of rules Burlington Northern Railroad Co. v. Woods, 480 U.S. 1, 5 (1986). 18 sion is contrary to decisions of this Court and would effectively mean that Rule 64 is invalidated by the Rules Enabling Act, for all state law creditor remedies create substantive remedies. The Court should grant certiorari to correct this deviation from this Court’s precedents and to review this important issue of federal law. Prior to filing this action, the Petitioner filed an action under ERISA and § 301(a) of the LMRA against the employer, S.N. Brown Electrical Corp., in the United States District Court for the District of Massachusetts, C.A. 90-11395Y. Petitioner also, pursuant to Rule 64 which permits use of liens “regardless of whether by state procedure the remedy is ancillary to an action or must be obtained by an independent action,” filed this action in state court to enforce a lien under Massachusetts G.L. c. 254. Section 514(d) of ERISA provides that § 514(a) shall not “be construed to alter, amend, modify, invalidate, impair, or supercede any law of the United States.” This Court has applied § 514(d) where “[s]tate laws obviously play a significant role in the enforcement” of the federal law. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 101 (1983). This Court has ac knowl- edged the importance of the Federal Rules of Civil Procedure in providing ERISA plans with state law mechanisms for ob- taining pre-judgment and post-judgment remedies. In Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825. 833-834 (1988), the Court stated: ERISA does noi provide an enforcement mechanism for collecting judgments won in either of these two types of actions. Thus, while § 502(d), the “sue and be sued” provision, contemplates execution of judg- ments won against plans in civil actions, it does not provide mechanisms to do so. Moreover, Federal Rule of Civil Procedure 69(a), which would apply when either type of civil suit discussed above is brought against an ERISA plan in federal court, defers EEE 19 to state law to provide methods for collecting judg- ments. . . . Consequently, state-law methods for col- lecting money judgments must, as a general matter, remain undisturbed by ERISA... . (Citations omitted). It follows that state law pre-judgment rem- edies under Rule 64 are equally as necessary as post judgment remedies under Rule 69(a). These remedies are essential to allow ERISA plans to lien property so that it will be available to satisfy judgments against employers for unpaid contributions. The First Circuit’s construction of the Rules Enabling Act, 28 U.S.C. § 2072, and Rule 64, to exclude state-law lien statutes which create or affect “substantive” rights against third parties would essentially abolish all prejudgment remedies. Arrest, sequestration, attachment and garnishment, all rem- edies expressly permitted by Rule 64, also create or affect “substantive” rights. Thus the First Circuit’s reading would essentially render Rule 64 void under the Rules Enabling Acct. Section 2072(b) of the Rules Enabling Act provides that the Federal Rules of Civil Procedure “shall not abridge, enlarge or modify any substantive right.” The Court has construed this to mean that while the federal rules cannot create substantive rights, Daily Income Fund v. Fox, 464 U.S. 523, 544 n.2 (1984) (STEVENS, J., concurring in judgment), the federal rules may incorporate state laws which do create or affect substantive rights. Kamen v. Kemper Financial Services, Inc.. U.S. » LIE S.Ct. 1711, 1717 (1991). In fact, a unani- mous Court in Kamen concluded that incorporation of state substantive law into Federal Rule 23.1 and federal common law may be necessary in order not to violate the Rules Enabling Act, Suggesting that incorporation of state substantive law into the federal rule is necessary to comply with 28 U.S.C. § 2072(b)."° The Court stated in Kamen that while Rule 23.1 contemplates that a shareholder make a pre-complaint demand upon the board of directors, it cannot 20 As stated by the Court: It is clear that the contours of the demand requirement in a derivative action founded on the ICA are gov- erned by federal law. . . . It does not follow, how- ever, that the content of such rule must be wholly the product of a federal court’s own devising. Our cases indicate that a court should endeavor to fill the interstices of federal remedial schemes with uniform federal rules only when the scheme in question evi- dences a distinct need for nationwide legal standards, . .. or when express provisions in analogous statutory schemes embody congressional policy choices read- ily applicable to the matter at hand,. . . . Otherwise, we have indicated that federal courts should “incor- porat[e] [state law] as the federal rule of decision,” unless “application of [the particular] state law [in question] would frustrate specific objectives of the federal programs.” . . . The presumption that state law should be incorporated into federal common law is particularly strong in areas in which private parties have entered legal relationships with the expectation that their rights and obligations would be governed by state-law standards. See id. , at 728-729, 739-740, 99 S.Ct. at 1458-1459, 1464-1465 (commercial law): Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 210, 66 S.Ct. 992, 995, 90 L.Ed. 1172 (1946) (property law)... . Id. at 1717. Thus not only is incorporation of state substantive law the “presumption” under the Federal Rules of Civil Pro- create a demand requirement because to do so would abridge, enlarge or modify a substantive right in violation of the Rules Enabling Act. /d. at 1716. Having said this, the Court nonetheless concluded that it would be proper to incorporate into Rule 23.1 as federal common law state substantive law concerning a futility exception to the pre-complaint demand requirement. 21 cedure, this Court has specifically noted that, with respect to Rule 64, it is not only the presumption but the very rule itself. Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 436 n.10 (1974). There the Court recognized Rule 64 as the embodiment . . Of long-settled federal law providing that in all cases in federal court, whether or not removed from State court, state law is incorporated to determine the availability of prejudgment remedies for the sei- zure of person or property to secure satisfaction of the judgment ultimately entered. /d. See also Huron Holding Corp. v. Lincoln Mine Operating Co., 312 U.S. 183, 188 (1941) (applying New York law to test validity of attachment); Kend v. Chroma-Glo, Inc., 51 F.R.D. 547, 549 (D. Minn. 1970), aff’d, 478 F.2d 198 (8th Cir. 1973) (stating that rule 64 embodies the holding of this Court's decision in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), in that it incorporates state pre-judgment creditor remedies for use by federal courts); See generally MOORE’S FEDERAL PRACTICE, par. 64.03 at p. 64-8 (1983) (“Rules 64 and 69 adopt, respectively, the former practice at law de- aling with attachment, and other provisional remedies, and the execution of money judgments, but specifically provide that conformity to state law shall be to the law existing at the time the remedy is sought.”).'* ‘It is for this reason that courts in considering whether application of a federal rule would violate § 2072(b) have not focused upon whether state substan- tive law can permissibly be incorporated, which they have taken for granted, but instead whether state law creates the night claimed. See Fontenot v. Roach, 120 F. Supp. 788, 790-791 (E.D. Tenn. 1954) (holding Rule 14 does not permit addition of third party defendant for nght of contribution where Tennessee law has not created nght of contribution until defendant has first satisfied the judgment); Brennan v. Silvergate Dist. Lodge No. 50, Inter. Assoc. of Machinists and Aeros- pace Workers, AFL-CIO, 503 F.2d 800, 804 (9th Cir. 1974) (in deciding right to intervention under Rule 24, which is a substantive night, court must first determine if intervention is contemplated by federal statute at issue) 22 The First Circuit deviated from this Court’s precedents when it concluded that Rule 64 could not incorporate state laws which create substantive rights. Such a reading of the Rules Enabling Act is contrary to this Court’s precedents which per- mit the Federal Rules of Civil Procedure to incorporate state substantive laws into the rules as federal common law. Further- more, Rule 64 would be vitiated by denying use of state com- mercial and creditor statutes which create or affect substantive rights.'* The prohibition contained in § 2072(b) is only that the federal court cannot abridge, enlarge or modify a substantive right. It does not preclude the rule from recognizing or relying upon the state substantive law already in existence. In other words. Rule 64 can make use of state laws which create substantive rights if such substantive right is already recognized under State law at the time of the federal action. Rule 64 is a pro- cedural means to permit use of state law remedies as “available under the circumstances and in the manner provided by the law of the state in which the district court is held. existing at the time the remedy is sought. . . .” Thus only if the lien Statute, arrest, sequestration or other corresponding or equiva- State law mechanisms such as arrest, attachment. garnishment, replevin, sequestration — mechanisms listed as available in Rule 64 — are generally considered to affect substantive rights. See Fuentes v. Shevin. 407 U.S. 67 (1972) (stating in replevin action that persons whose state law property “rights” are affected are entitled to notice and a hearing prior to seizure of the property); Ospina v. Vanelli, 34 F.R.D. 151, 152 (D. Minn. 1964) (stating that Rule 64 authorizes federal courts “to adopt both the substantive and procedural law of Minnesota in regard to garnishment proceedings.) The arrest and correspond- ing deprivation of liberty is clearly an abridgement of a fundamental substantive right. Garnishment orders to pay over property arguably creates a substantive right against another. If a bank, for example, ignores the garnishment order, it must still make payment of the monies from its own property. Furthermore, an attachment creates a lien, which in turn creates priorities among various lien claimants. Recognition of any lien has the potential of depriving some other person, including the judgment debtor, of a property right. State law prejudgment remedies are subject to procedural due process precisely because they affect substantive property or liberty rights of individuals. 23 lent remedy were not recognized under the state law in which the district court is held, and the district court nonetheless authorized the lien or garnishment of property or the arrest of a person, would the use of Rule 64 abridge, enlarge or modify a substantive right. Rules 64 and 69(a) of the Federal Rules of Civil Procedure are unique among the Federal Rules of Civil Procedure, in that they specifically incorporate and make use of state creditor law, and thereby fill an important function by compensating for the general absence of pre-judgment and post-judgment remedies in federal statutes. This Court has already determined in Mackey that ERISA is just such a statute in which Congress chose not include pre-judgment and post-judgment remedies but to rely upon available state law remedies. The First Circuit’s conclusion that Rule 64 does not con- template use of state laws which establish substantive rights is contrary to the express language of Rule 64. The effect of the First Circuit’s holding is to declare Rule 64 invalid. The impairment of this federal law and the resulting effect of § 514(d) of ERISA is an important question of federal law which should be resolved by this Court. Without this Court’s review, the First Circuit’s decision will leave ERISA plans with the ability to obtain judgments against employers but without the means other creditors have to secure and collect upon such judgments. This Court should, therefore. grant certiorari to restore to ERISA plans the ability to secure and collect on their judgments. ee en 24 VI. The Pre-emption Of State Mechanics’ Lien Statutes Undermines And Impairs Federal Labor And Pension Laws Which Have Long Depended On Mechanics’ Liens, Bonding And Other State Statutes To Enforce The Collective Bargaining Obligations Of Employers, And Are Therefore Saved From Pre-emption By § 514(d) of ERISA. Prior to the enactment of § 515 of ERISA, this Court had recognized that state law may be used under § 301(a) of the LMRA where compatible with the purpose of § 301(a). See Textile Workers Union of America v. Lincoln Mills of Ala., 353 U.S. 448, 456-457 (1957). There the Court stated: “But state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy. . . . Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights.” Section 301(a) permits trustees of § 302(c) funds to sue to enforce collective bargaining agree- ments, to use state laws to collect contributions and to use state collection mechanisms. See Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962); Schneider Moving and Storage Company v. Robbins, 466 U.S. 364 (1984). When § 515 of ERISA was added to provide an additional enforcement mechanism, Congress specifically reserved other collection remedies under federal or state law. See Issue III, supra. Pre-emption of state mechanics’ lien laws would impair enforcement of § 515 of ERISA and § 301(a) of the LMRA and undermine the purposes and protections Congress intended for ERISA plans when it enacted ERISA. As in Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983), given the importance of the state laws to the federal scheme, to make the federal rem- edies exclusive would so disrupt the enforcement scheme as to modify and impair federal law within the meaning of § 514(d). ———— 25 The First Circuit’s decision ignores the historical role state laws, and specifically state mechanics’ lien laws, have had in the enforcement of § 515 of ERISA and § 301(a) of the LMRA.'* Congressional statements that federal and state col- lection remedies be left undisturbed by ERISA, this Court’s decisions under § 301(a) of the LMRA, and § 514(d) of ERISA prove that mechanics’ lien laws are not to be pre-empted by ERISA. This Court should grant certiorari to restore the full use of § 515 and § 301(a) through state collection remedies as Congress intended. CONCLUSION For the foregoing reasons the petitioner requests that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the First Circuit. Respectfully submitted, KATHERINE A. HESSE Counsel of Record DAVID W. HEALEY MURPHY, HESSE, TOOMEY ano LEHANE 300 Crown Colony Drive Suite 410 Quincy, Massachusetts 02269-9126 (617) 479-5000 February 14, 1992 *Mechanics’ lien law remedies have historically served to secure the payment of wages owed to laborers and mechanics engaged in the construction industry. Lien rights have existed in Massachusetts since its first law was enacted in 1819. Friedman v. County of Hampden, 204 Mass. 494, 90 N.E. 851, 855 (1910). “The earliest lien law was that of Maryland. Adopted in 1791 at the request of Thomas Jefferson and James Madison, it was designed to stimulate construction in Washington, D.C.” Bonds, Liens & Insurance, Federal Publi- cations, Inc., p. 79 (1986) TABLE OF CONTENTS APPENDIX A Decision of the United States Court of Appeals for the First Circuit dated November 19, 1991 APPENDIX B Judgment dated November 19, 1991 APPENDIX C Memorandum and Order on Plaintiff's Motion to Remand and Defendant’s Motion to Dismiss the Complaint dated March 1, 1991 APPENDIX D Judgment dated March 5, 1991 APPENDIX E Complaint dated July 16, 1990 APPENDIX F Letter dated January 30, 1991 from Robert J. Doyle, United States Department of Labor APPENDIX G Letter dated October 26, 1984 from Elliot I. Danie}, United States Department of Labor APPENDIX H Pertinent Statutes and Rules Al A2?? A30 A3l A42 \48 A52 Al APPENDIX A United States Court of Appeals For the First Circuit No. 91-1318 JAMES L. McCOY, ADMINISTRATOR OF THE ELECTRICAL WORKERS TRUST FUNDS, ETC., Plaintiff, Appellant, v. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Walter Jay Skinner, U.S. District Judge | Before Breyer, Chief Judge, Aldrich and Selya, Circuit Judges. Katherine A. Hesse, with whom David W. Healey, and Murphy, Hesse, Toomey and Lehane were on brief for appel- lant. Corwin & Corwin, Lisa A. Harrod and Joseph M. Corwin on brief for David R. McGinness, Administrator for Trustees of Various Funds (Plumbers and Gasfitters Local Union No. 12), amicus curiae. Bruce D. Burns, with whom Jeffrey Swope, Harvey Nosowitz and Palmer & Dodge were on brief for appellee. November 19, 199] A2 SELYA, Circuit Judge. This appeal calls upon us to deter- mine an issue of first impression: whether the Employee Retire- ment Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461 (1988), preempts the operation of a Massachusetts mechanics’ lien statute, Mass. Gen. L. ch. 254 (1990), as it concerns the rights of employee benefit plans. The district court dismissed the plaintiff's suit, finding preemption. McCoy Vv. Massachusetts Institute of Technology, 760 F. Supp. 12 (D. Mass. 1991). We affirm. I. BACKGROUND Because the district court's order of dismissal was entered pursuant to Fed. R. Civ. P. 12(b)(6), we must accept as true the well-pleaded factual averments contained in the complaint, while at the same time drawing all reasonable inferences there- from in the appellant's favor. See Correa-Martinez v. Arril- laga-Belendez, 903 F.2d 49, 51 (Ist Cir. 1990); Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989). The salient facts are susceptible to succinct summarization. Plaintiff-appellant James L. McCoy is the administrator of several different trust funds (the Funds) set up by Local 103 of the International Brotherhood of Electrical Workers. The Funds, through McCoy, brought suit in state court to enforce a lien against property owned by the defendant Massachusetts Institute of Technology (MIT). Neither the Funds nor the union had any direct relationship with MIT. Rather, the Funds prem- ised their action on a Massachusetts law allowing the trustee of an employee benefit plan to assert a lien against property improved through the labor of plan participants in order to collect overdue benefit contributions. The Funds alleged, in particular, that S.N. Brown Electrical Corporation (Brown) was the employer of some plan partici- pants; that Brown, as a subcontractor, employed these persons to effect improvements to property owned by MIT and located A3 at 143-153 Albany Street, Cambridge, Massachusetts; that Brown, in derogation of its obligations under a collective bar- gaining agreement, neglected to make employee benefit con- tributions attributable to the work; and that the Funds were, therefore, entitled to look to MIT’s interest in the Albany Street property as a means of recouping the resultant shortfall. Invoking 28 U.S.C. § 1441 (1988), MIT removed the case to the district court based on federal question jurisdiction. ' MIT then moved to dismiss, claiming preemption. The district court agreed, McCoy, 760 F. Supp. at 14-16, and this appeal ensued. Il. STANDARD OF REVIEW We afford plenary review to orders of the district court granting motions to dismiss under Civil Rule 12(b)(6). See Miranda v. Ponce Fed. Bank, F.2d ; (Ist Cir. 1991) [No. 90-2214, slip op. at 3]; Kale v. Combined Ins. Co., 924 F.2d 1161, 1165 (1st Cir.), cert. denied, S. Ct. (1991). The same benchmarks apply in the exercise of appellate jurisdiction as in the nisi prius court. It follows that, “{iJn the Rule 12(b)(6) milieu, an appellate court . . . may affirm a dismissal for failure to state a claim only if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory.” Correa-Martinez, 903 F.2d at 52. The well-pleaded complaint rule normally prohibits the invocation of federal question jurisdiction if no issue of federal law appears on the face of a complaint. Gully v. First Nat'l Bank, 299 U.S. 109, 113 (1936); Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908). Because federal preemption is ordinarily raised as a defense to a suit, it will often not appear on the face of a well-pleaded complaint and, accordingly, the possibility of preemption does not usually authorize removal. See Metropolitan Life Ins. Co v. Taylor, 481 U.S. 58, 63 (1987). But the rule, like most legal rules, is not without its recognized exceptions. A claim of ERISA preemption animates one such ex- ception, id. at 67, on the basis that “Congress may_so completely pre-empt a particular area [of law] that any civil complaint raising this select group of claims is necessarily federal in character.” /d. at 63-64. Hence, the court below properly asserted removal jurisdiction despite the fact that the complaint did not explicitly delineate a federal question. > vv ee A4 Iii. THE STATE STATUTE To place the issues on appeal into perspective, it is necessary first to give the reader a glimpse of the Massachusetts mechanics’ lien law. The central provision of the lien law States: A person to whom a debt is due for personal labor performed in the erection, alteration, repair or re- moval of a building or structure upon land, by virtue of an agreement with, or by consent of, the owner of such building or structure, or of a person having authority from or rightfully acting for such owner in procuring or furnishing such labor, shall, under the provisions of this chapter, other than sections three and four, have a lien upon such building or structure and upon the interest of the owner thereof in the lot of land upon which it is situated, for not more than eighteen days’ work actually performed during the forty days next prior to his filing a statement as provided in section eight. For purposes of this chapter, a person shall include any employee of any employer and the trustee or trustees of any fund or funds, established pursuant to section 302 of the Taft Hartley Law (29 USC 186), providing coverage or benefits to said person. The trustee or trustees of any such fund or funds shall have all the liens under this chapter that any person has. The trustee or trustees shall also have the right to enforce said liens pursuant to this chapter. Mass. Gen. L. ch. 254, § 1. The statute provides for notices referable to liens, see, e.g., id. §§ 2-4, and specifically con- templates that, where subcontractors are involved, certain lien notices “may also be filed by the trustee or trustees of a fund AS or funds, described in section one, providing coverage or ben- efits to any person performing labor under a written contract with a contractor, or with a subcontractor of such contractor.” Id. § 4. In succeeding sections, the lien law limns the mechanics of enforcement. Generally, a lien is enforced by means of a civil action brought by the lienor against the property owner in the county or judicial district where the property lies. Jd. § 5. The remaining provisions of the lien law are not germane to our discussion. IV. ANALYSIS We elect to divide our perlustration of the merits into three segments. Initially, we review the general principles and policies pertaining to preemption in the ERISA context. We then address the chief argument advanced in support of reversal. Finally, we comment upon certain secondary theses hawked by the Funds. A. ERISA Preemption: An Overview. Out of respect for the distinct spheres of authority inherent in our federal system, preemption of state law is generally disfavored. See, e.g., Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 522 (1981). But, this presumption is not inviol- abie. If “the nature of the regulated subject matter permits no other conclusion, or . . . Congress has unmistakably so or- dained,” federal preemption of state law is mandated under the Supremacy Clause. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963). ERISA preemption is, as a general matter, extensive in its scope. ERISA governs “employee benefit plans.” 29 U.S.C. § 1001. As part of the statutory structure established to regulate such plans, Congress formulated a sweeping preemption clause. This clause, ERISA § 514(a) commands that ERISA “shall supersede any and all State laws insofar as they may now ee A6 or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a). For preemption purposes, “State laws” are “all laws, decisions, rules, regulations, or other State action having the effect of law.” 29 U.S.C. § 1144(c)(1). Under the provisions of section 514(a), if a state law “relates to” an employee benefit plan, it is preempted. “A law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983). “[A] state law may ‘relate to’ a benefit plan, and thereby be preempted, even if the law is not specifically designed to affect such plans, or the effect is only indirect.” Ingersoll-Rand Co. v. McClendon, 111 S. Ct. 478, 483 (1990); see also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47-48 (1987); Shaw, 463 U.S. at 98. At the bottom line “the question whether a certain state action is pre-empted by federal law is one of congressional intent.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202. 208 (1985); Malone v. White Motor Corp., 435 U.S. 497, 504 (1978). While fathoming congressional intent can sometimes be an imprecise venture, section 514(a)’s bold and capacious language provides a particularly incisive manifestation of con- gressional purpose, thus easing the judicial chore. See Inger- soll-Rand, 111 S. Ct. at 482 (“Where, as here, Congress has expressly included a broadly worded pre-emption provision in a comprehensive statute such as ERISA, our task of discerning congressional intent is considerably simplified.”); Shaw, 463 U.S. at 96 (similar). In considering Congress’ intent in the ERISA context, all roads lead to Rome. The legislative history of section 514(a), like its language, counsels against a crabbed interpretation of the statute. As the Shaw Court observed, the bill that became ERISA originally contained a much narrower preemption clause that Congress rewrote more panoramically, indicating “that the section's pre-emptive scope was as broad as its language.” A7 Shaw, 463 U.S. at 98. Senator Williams, a principal sponsor of the bill, stated that the ERISA preemption cause, in its final form, was “intended to apply in its broadest sense to all actions of State or local governments, or any instrumentality thereof, which have the force or effect of law.” 120 Cong. Rec. 29,933 (1974). Exhibiting great deference to the statutory language and legislative history, the Court has consistently acknowledged the far-ranging scope of section 514(a)’s phraseology and in- terpreted section 514(a) expansively, See, e.g., Ingersoll- Rand, 111 S.Ct. at 482; Pilot Life, 481 U.S. at 44-47; Shaw, 463 U.S. at 96-100; see also FMC Corp. v. Holliday, \\1 S. Ct. 403, 407 (1990) (observing that “[ERISA’s] pre-emp- tion cause is conspicuous for its breadth”); Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 24.26 (1983) (describing ERISA’s commodious preemption provi- sion as “virtually unique’’). Despite the fact that section 514(a) casts a long shadow, ERISA preemption is not limitless. “Some state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.” Shaw, 463 U.S. at 100 n.21; see also Retirement Fund Trust, Etc. v. Franchise Tax Bd., 909 F.2d 1266, 1281 (9th Cir. 1990) (ERISA held not to preempt a state income tax levy); Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 147 (2d Cir.) (ERISA held not to preempt a state escheat law), cert. denied, 110 S. Ct. 57 (1989); Firestone Tire & Rubber Co. v. Neusser, 810 F.2d 550, 556 (6th Cir. 1987) (ERISA held not to preempt a municipal income tax of general applica- bility); Rebaldo v. Cuomo, 749 F.2d 133, 139 (2d Cir. 1984) (ERISA held not to preempt a state law regulating hospital fees), cert. denied, 472 U.S. 1008 (1985). By the same token, ERISA does not preempt state judgment-enforcing laws of general application. Thus, in Mackey v. Lanier Collection A8 Agency & Serv., Inc., 486 U.S. 825 (1988), a state’s general garnishment statute evaded preemption even when used to satisfy judgments against ERISA plan participants. See id. at 841. We do not pretend that it is always easy to draw the line separating those state statutes that fall prey to ERISA preemp- tion from those that stand fast. But, to the extent that gray areas exist, the policy rationales that permeate ERISA and its preemption can afford sound guidance in determining what state laws may survive. See Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 15 (1987). The drafters of section 514(a) wished, among other things, to protect the rights and expectations of plan participants, /ngersoll-Rand, 111 S. Ct. at 482, and to ensure that plans and plan sponsors would be subject to a uniform body of benefit law; the goal was to minimize the administrative and financial bur- den of complying with conflicting directives among States or between States and the Federal Govern- ment. Otherwise, the inefficiencies created could work to the detriment of plan beneficiaries. Id. at 484. Indeed, the Court has often justified section 514(a)’s elongated reach by citing Congress’ desire to avoid a “patch- work scheme of regulation [which] would introduce consider- able inefficiencies in benefit program operation.” Fort Halifax, 482 U.S. at 11; see also FMC, 111 S. Ct. at 408-09; Shaw. 463 U.S. at 10S. B. ERISA Preemption: The Doctrine As Applied. Based on the policy considerations described above, the Funds have a plausible argument that the mechanics’ lien law here at issue should not succumb to section 514(a). After all, the Massachusetts statute grants employee benefit plans access A9 not only to a further mechanism by which they can collect outstanding debts, but also to a new (and perhaps deeper) pocket from which monies owed may be repaid. Improving a fund’s collection prospects seems, at first blush, fully conson- ant with Congress’ purpose of safeguarding participants’ rights and expectations. Furthermore, the lien law advantages em- ployee benefit plans without increasing “the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government” — a factor which “could work to the detriment of plan benefi- ciaries.”” Ingersoll-Rand, 111 S. Ct. at 484. And, it is hard to see how use of Mass. Gen. L. ch. 254 might interfere with establishing “a uniform body of benefit law,” id., to any greater degree than would use of a state garnishment statute (as permit- ted in Mackey). In this sense, then, allowing trustees of covered plans to utilize the lien law at their own volition would simply add an arrow to an already well-stocked quiver. Coming at the same point from another direction, if the trustees of an ERISA regulated plan choose to impose and enforce a lien, it is fair to presume that, as fiduciaries, they will use the proceeds to the betterment of plan beneficiaries. So viewed, the lien law is a help, not a hindrance, to ERISA-regulated plans. But, benefit is not the relevant test. Notwithstanding the synchronicity between the policy considerations that undergird ERISA and the Funds’ attempted utilization of the Massachu- setts mechanics’ lien law, fidelity to precedent compels a con- clusion that any such use of the lien law is preempted. We explain briefly. The Court has been especially skeptical of state laws which, like the Massachusetts lien law, specifically refer to ERISA plans and grant them special treatment. See Mackey, 486 U.S. at 829 (stating that the Court has “virtually taken it for granted that state laws which are specifically designed to affect em- ployee benefit plans are pre-empted under 514(a)’’) (quotation Al0 marks omitted). The vice in such laws is not palliated by a state legislature’s good intentions or by a comfortable fit be- tween a State statute and ERISA’s overall aims. To the exact contrary, the Court has made it pellucidly clear that section 514(a) “was intended to displace all state laws that fall within its sphere, even including state laws that are consistent with ERISA’s substantive requirements.” Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985); accord Mackey, 486 U.S. at 830. Hence, “any state law which singles out ERISA plans, by express reference; for special treatment is pre-empted.” /d. at 838 n.12 (emphasis in original). This means, in short, that state laws which expressly relate to em- ployee benefit plans are necessarily grist for the preemption mill. To be sure, footnote 12 in Mackey is dictum — but it is considered dictum. We are, therefore, both unable to ignore it and unwilling to do so. We agree with Professor Wright that, in evaluating dicta, “[m]Juch depends on the character of the dictum. Mere obiter may be entitled to little weight, while a carefully considered statement . . ., though technically dic- tum, must carry great weight, and may even. . . be regarded as conclusive.” Charles A. Wright, The Law of Federal Courts § 58, at 374 (4th ed. 1983). And here, the earmarks of careful consideration are readily apparent. In our judgment, it would be blinking reality to pass off Mackey’s footnote 12 as a chance statement. Justice White’s emphasizing of the word “any” by placing it in italics eliminates even the remote possibility that footnote 12 was casually constructed. This conclusion draws the grease from the goose. We think that federal appellate courts are bound by the Supreme Court's considered dicta almost as firmly as by the Court's outright holdings, particularly when, as here, a dictum is of recent vintage and not enfeebled by any subsequent statement. Cf., e.g., Faucher v. Federal Election Comm'n, 928 F.2d 468. All 470 (ist Cir.) (court of appeals cannot assume the Supreme Court “proclaims the law lightly” when it authors considered dictum), cert. denied, Ss. Gh. (1991). If lower courts felt free to limit Supreme Court opinions precisely to the facts of each case, then our system of jurisprudence would be in shambles, with litigants, lawyers, and legislatures left to grope aimlessly for some semblance of reliable guidance. Nor are we alone in voicing our healthy regard for dictum that appears to have been carefully considered. See, e.g., Nichol v. Pullman Standard, Inc., 889 F.2d 115, 120 n.8 (7th Cir. 1989) (court of appeals “should respect considered Supreme Court dicta”); United States v. Underwood, 7\7 F.2d 482, 486 (9th Cir. 1983) (court of appeals not at liberty to “disregard . . guidelines” established by Supreme Court, albeit through dicta), cert. denied, 465 U.S. 1036 (1984); United States v. Bell, 524 F.2d 202, 206 (2d Cir. 1975) (considered dictum “must be given considerable weight and can not be ignored in the resolution of [a] close question”). If we are to turn corners squarely, the rest follows inexora- bly. In respect to the scope of ERISA preemption, we have no real option except to conclude that the High Court meant exactly what it wrote in footnote 12 of Mackey. Therefore, we are constrained to treat the statement as authoritative and to obey its command. Given this preface, there can be no question about the closing chapter. The statute at issue expressly singles out ERISA plans for special treatment. The second paragraph of Mass. Gen. L. ch. 254, § 1 provides, inter alia, that the mechanics’ lien law shall inure to the advantage of “the trustee or trustees of any fund or funds, established pursuant to section 302 of the Taft Hartley Law (29 USC 186), providing coverage or benefits to [an employee].” Similarly, the law provides for the filing of certain lien-related notices “by the trustee or trustees of a fund or funds, described in section one, providing coverage or bene- | | | i Al2 fits to any person performing labor.” /d. § 4. Under ERISA’s staple definitions, the term “employee benefit plan” (or simply “plan”) includes “employee welfare benefit plan[s].” 29 U.S.C. § 1002(3). A plan fits within this integument if it is established, inter alia, “for the purpose of providing for its participants or their beneficiaries . . . any benefit described in [29 U.S.C. § 186(c)].” Id. § 1002(1)(B). Thus, any plan that grants benefits under 29 U.S.C. § 186, which is another way of describing any plan that grants benefits under section 302 of the Taft-Hartley Act, is by definition an ERISA plan.’ Put bluntly, by singling out “section 302” plans for special treatment, the Massachusetts mechanics’ lien law, in the same stroke, singles out ERISA plans for special treatment. It is. therefore, preempted as it applies to ERISA-regulated plans. In light of this analysis, we find it unsurprising that, in analogous cases, several of our sister circuits have ruled in favor of preemption. The Fifth Circuit, in a strikingly similar case involving Louisiana’s mechanics’ lien statute, La. Rev. Stat. Ann. §§ 9:4801-9:4823 (West 1983), held that ERISA preempted the law’s operation. See Jron Workers Mid-South Pension Fund v. Terotechnology Corp., 891 F.2d 548, 556 (Sth Cir.), cert. denied, 110 S. Ct. 3272 (1990). The Third Circuit found preemption in a case involving Pennsylvania's wage payment and collection law, Pa. Stat. Ann. tit. 43. §§ 260.1-260.12 (Supp. 1985). See McMahon v. McDowell, 794 F.2d 100, 105-08 (3d Cir.), cert. denied, 479 U.S. 971 (1986). We note in passing that, although there is no legitimate doubt as to what the state legislature intended when it wrote the words “established pursuant to section 302 of the Taft Hartley Law (29 USC 186),” the statute seems inartfully phrased. Section 302 is not a provision “pursuant to” which a fund can be established. Rather, section 302 regulates financial transactions between em- ployers and employees (or unions). See 29 U.S.C. § 186(a)-(b) ( 1988). In the course of such regulation, section 302 describes certain employee benefits. /d § 186(c). It is these employee benefits that both the Massachusetts law, Mass Gen. L. Ch. 254, §§ 1, 4, and ERISA, 29 U.S.C. § 1002(1)(B). incorporate by reference. Al3 The Ninth Circuit recently decided that a California lien law which advantaged trusts established to receive employer’s con- tributions “on account of fringe benefits supplemental to a wage agreement,” Cal. Civ. Code § 3111 (West 1974), was preempted by ERISA. See Sturgis v. Herman Miller, Inc.., F.2d ‘ (9th Cir. 1991) [No. 90-15054, slip op. at 12286-89]. The court remarked that, while the California law did not expressly refer to ERISA plans, “it need not do so where the statute obviously singles out ERISA plans.” /d. at [slip op. at 12289]. Since the state law accorded “ERISA plans a unique procedural benefit by conferring upon them special mechanic lien rights to collect delinquent contributions,” it was preempted. /d. Given the difference in language between the Massachusetts and California statutes — a difference which tilts toward preemption, not away from it — the same result must obtain here. ' We need not paint the lily. State statutes which expressly grant preferential benefits to ERISA plans cannot withstand the preemptive force of ERISA § 514(a). Inasmuch as Mass. Gen. L. ch. 254 is such a statute, the Funds’ use of the lien created thereby is preempted. ‘As the appellant accurately observes, state appellate courts have. on occa- sion, espoused a seemingly contrary view. See, e.g., Plumbers Local 458 Holiday Vacation Fund v. Howard Immel, Inc., 445 N.W.2d 43 (Wis. 1989) (declining to find Wisconsin lien law preempted). The better-reasoned state court decisions, however, are harmonious with the federal precedents. See, ¢.g., Carpenters §. Cal. Admin. Corp. v. El Capitan Dev. Co., 811 P.2d 296 (Cal. 1991) (en banc), petition for cert. filed (U.S. Sept. 18, 1991) (No 91-480), Prestridge v. Shinault, 552 So.2d 643 (La. Ct. App. 1989), writ denied, 559 So.2d 131 (La. 1990). A decision of the New York Court of Appeals, Sasso v. Vachris, 484 N.E.2d 1359 (N.Y. 1985), much ballyhooed by the Funds, antedates Mackey and Ingersoll-Rand, and its reasoning, which has been called into question by at least one other circuit court, see Local Union 598, Plumbers & Pipefitters Industry Journeymen & Apprentices Train- ing Fund v. J.A. Jones Constr. Co. , 846 F.2d 1213, 1219 n.8 (9th Cir.). aff'd mem., 488 U.S. 881 (1988), is suspect. At any rate, Sasso involves a signific- antly different statutory scheme and is largely inapposite for our purposes Al4 C. Other Arguments. The Funds make two other attempts to avoid a preemptive strike. Neither effort brings them out of range. 1. Rule 64. The Funds asseverate that the use of the Mas- sachusetts mechanics’ lien law is authorized by Fed. R. Civ. P. 64* and, therefore, is salvaged from preemption by section 514(d) of ERISA, 29 U.S.C. 1144(d), which provides that ERISA shall not “be construed to alter, amend, modify, invali- date, impair, or supersede any law of the United States .. . or any rule or regulation issued under any such law.” The asseveration cannot survive the mildest of scrutiny. In order to trigger section 514(d), some alteration of a federal law must be in prospect. The Federal Rules of Civil Procedure can properly be regarded as coming under this rubric since they have the same force and effect as federal statutory law. See United States v. St. Paul Mercury Ins. Co., 361 F.2d 838, 839 (Sth Cir.), cert. denied, 385 U.S. 971 (1966); Laker Air- ways Lid. vy. Pan Am. World Airways, 103 F.R.D. 42, 50 n.19 (D.D.C. 1984). Nevertheless, the Civil Rules cannot roam at will. The Rules Enabling Act, 28 U.S.C. § 2072 (1988), ordains that the Civil Rules must relate to “practice or procedure.” /d. § 2072(a); see also Answering Serv. Inc. v. ‘The rule provides in pertinent part that, during the course of an action in federal court, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the state in which the district court is held, existing at the time the remedy is sought, subject to [certain qualifications not germane to the case at hand]. The remedies thus available include arrest, attachment, garnishment, replevin, sequestration, and other corresponding or equivalent rem- edies, however designated and regardless of whether by state pro- cedure the remedy is ancillary to an action or must be obtained by an independent action. Fed. R. Civ. P. 64. Al5 Egan, 728 F.2d 1500, 1506 (D.C. Cir. 1984). The Enabling Act expressly forbids Civil Rules that “abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(b); see also Browny. E.W. Bliss Co., 818 F.2d 1405, 1409 (8th Cir. 1987). The Funds say, in essence, that the marriage of Civil Rule 64 and ERISA § 514(d) permits employee benefit plans to take advantage of the Massachusetts mechanics’ lien law. If this argument were correct, the upshot would be to give birth to a new, independent cause of action, not otherwise suable. Such a result wouid obviously affect substantive rights and thus alter substantive law. And the result wouid, in the bargain, contravene the Rules Enabling Act. In this respect, the mechanics’ lien law, which creates a new right of action against a new defendant, is unlike most remedies contemplated by Rule 64 “because it is not a remedy against [a] judgment debtor or against a person who ts personally indebted to, or in posses- sion of the property of, the judgment debtor.” Bricklayers Fringe Benefit Funds v. North Perry Baptist Church, 590 F.2d 207, 209 (6th Cir.) (affirming dismissal of a mechanics’ lien foreclosure claim asserted pursuant to Rule 64 against property owners for fringe benef?* contributions owed by a contractor), cert. denied, 444 U.S. 834 (1979). In sum, the Rules Enabling Act forecloses the Funds’ argu- ment. Civil Rule 64 cannot be emp!oyed as an effective vehicle to remove the Massachusetts mechanics’ lien law from preemp- tion under the terms of 29 U.S.C. § 1144(d). 2. The Education and Cultural Fund. The Funds’ fallback position is that, even if we find preemption, the Electrical Workers Educational and Cultural Fund (E&C Fund), one of the tunds for whose benefit McCoy sues, can still avail itself of the rights created by chapter 254. This claim rests on the assertion that the E&C Fund is not an employee welfare benefit plan covered by ERISA. In this regard, the Funds contend that not all plans which provide for benefits under 29 U.S.C. § 186 Al6 are ERISA plans. As support for this allegation, they note that the Secretary of Labor has authority to issue regulations defin- ing certain terms in the ERISA statute, see 29 U.S.C. § 1135: and that, utilizing this power, the Secretary promulgated a reguiation, 29C.F.R. § 2510.3-1(a) (1990), that fails to include plans granting benefits under 29 U.S.C. § 186(c)(9) within its ambit.* On this basis, the Funds try to convince us that the regulation’s silence effectively excludes section 186(c)(9) plans, like the E&C Fund, from ERISA coverage. The conten- tion is not only unpersuasive but also procedurally defaulted. It is hornbook law that theories not raised squarely in the district court cannot be surfaced for the first time on appeal. See, e.g., Boston Celtics Ltd. Partnership v. Shaw, 908 F.2d 1041, 1045 (Ist Cir. 1990); Aoude v. Mobil Oil Corp., 862 F.2d 890, 896 (Ist Cir. 1988); Clauson v. Smith, 823 F.2d 660, 666 (Ist Cir. 1987). In the lower court, the Funds’ Oppos- ition to MIT’s motion to dismiss made passing mention of the general point — a mention which, in its entirety, comprised two sentences and one citation (to a tangentially relevant case).° ‘Section 186(c)(9) addresses benefits granted “with respect to money or other things of value paid by an employer to a plant, area or industrywide labor management committee established for one or more of the purposes set forth in section 5(b) of the Labor Management Cooperation Act of 1978." 29 U.S.C. § 186(c)(9). Section 5(b) of the Labor Management Cooperation Act contemplates, as its title implies, improving cooperation and communication between labor and management. “The Funds’ total argument to the district court on this subject consisted of the following: Section 514(a() of ERISA by its terms applies only to employee benefit plans covered by ERISA as defined by § 4(a). .. . Therefore Chapter 254 is not preempted with respect to the Electrical Workers Education and Cultural Fund. Local 103 1.B.E.W., which is not covered by ERISA. The only case cited, Massachusetts v. Morash, 490 U.S. 107 (1989), which appeared in the opposition where we have inserted an ellipsis, was so peripheral that the Funds do not cite it at all on their briefs on appeal. Al7 The Funds failed to provide any analysis of the statutory scheme, to present any legal authority directly supporting their thesis; or to give any reason why the E&C Fund was not an employee benefit plan within ERISA’s contemplation. They did not refer the court to either 29 U.S.C. § 186(c)(9) or 29 C.F.R § 2510.3-1(a). In short, when this claim was presented below, it was the merest of skeletons. In an analogous situation, we wrote that a party has a duty “to spell out its arguments squarely and distinctly. . . . [rather than being] allowed to defeat the system by seeding the record with mysterious references . . . hoping to set the stage for an ambush should the ensuing ruling fail to suit.” Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (Ist Cir. 1988); see also Kensington Rock Island Ltd. Partnership v. American Eagle Historic Partners, 921 F.2d 122, 124-25 (7th Cir. 990) (“Arguments raised in the District Court in a perfunctory and underdeveloped . . . manner are waived on appeal.”) (quotation marks omitted); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (appellate-courts should not permit “fleeting references to pre- serve questions on appeal”), cert. denied, 475 U.S. 1088 (1986). Overburdened trial judges cannot be expected to be mind readers. If claims are merely insinuated rather than actu- ally articulated in the trial court, we will ordinarily refuse to deem them preserved for appellate review. So here. We reject as procedurally defaulted, the E&C Fund’s belated effort to give substance to its hitherto undeveloped theory.’ The Funds maintain that they presented the district court with a properly propaedeutic version of their argument regarding the E&C Fund in their Oppo- sition to MIT"s request for a protective order. But, that pleading, which was submitted nearly two months after briefing on MIT’s motion to dismiss was completed, cannot resurrect the issue for appeal. Courts are entitled to expect represented parties to incorporate all relevant arguments in the papers that directly address a pending motion. See, e.g., Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 528 (1st Cir. 1991) (“Requests for hearing must be explicit and ee Al8 We likewise reject the Funds’ blithe suggestion that a party’s duty of clear articulation is somehow abated in the Rule 12(b) (6) context. In opposing a Rule 12(b) (6) motion, a plaintiff cannot expect a trial court to do his homework for him. Rather, the plaintiff has an affirmative responsibility to put his best foot forward in an effort to present some legal theory that will support his claim. See Correa-Martinez, 903 F.2d at 52; Dartmouth Review, 889 F.2d at 16; Ryan v. Scoggin, 245 F.2d 54, 57 (10th Cir. 1957) (a court pondering a Rule 12(b)(6) motion should not grant credence to a “footless conclusion of law”). In this instance, the Funds disregarded that obligation. No amount of interpretive liberality can save chestnuts so poorly protected from the hot fire of dismissal. A second reason to forswear the E&C Fund’s claim hinges on the legal merit of its argument (or, more exactly put, the lack of legal merit). The complaint states that all the plans were “established pursuant to the requirements of 29 U.S.C. 186.”* The plans are, therefore, employee welfare benefit plans within ERISA’s purview. See supra p.14; see also 29 U.S.C. § 1002. At bottom, then, the E&C Fund’s status argu- ment runs at cross purposes with the plain language of the statute. The argument is, moreover, little bolstered by the adsciti- tious items which the appellant brings to bear. The Funds’ re- should be embodied in the pleadings, not in correspondence which may never reach .. . the judge’s attention.”); see also D. Mass. R. 7.1(a)(2) (requiring Opposition to motion to contain “in the same (rather than a separate), document a memorandum of reasons, including citation of supporting authorities, why the motion should not be granted”); Rule 7. 1(a)(3) (prohibiting supplementation of opposition except “with leave of court”); Rule 7.1(e) (providing that, when oral argument has not been requested, motions “will be decided on the papers submitted [once] an opposition to the motion has been filed”). Hence, the district court was under no obligation to. rummage through later-filed items pertaining to other matters in an attempt to vitalize the anemic argument contained in the Funds’ opposition to MIT's dismissal motion. *This language is inapt. See supra note 2. Al9 liance on 29 C.F.R. § 2510.3-1(a), for instance, is mislaid. The regulation was promulgated in 1975. 29 U.S.C. § 186(c) (9), the statutory reference which the appellant contends was purposefully excluded from the regulation’s text, was not enacted until 1978. Thus, it is virtually meaningless that the regulation fails to list within its compendium of ERISA plans those which grant benefits described in a portion of the statute that was not yet enacted when the regulation itself was written. The Funds’ reliance on two advisory opinions of the United States Department of Labor (DOL), ERISA Adv. Op. 91-08A (Jan. 30, 1991) and ERISA Adv. Op. 84-40A (Oct. 26, 984), is equally unprofitable. These opinions did not involve either MIT or the Funds and, therefore, have no force as precedent here. After all, the DOL’s regulations specifically provide that “{o}nly the parties described in the request for opinion may rely on the opinion.” 41 Fed. Reg. 36,281, 36,283 (§ 10). To sum up, since the E&C Fund was established pursuant to 29 U.S.C. § 186, and since ERISA states plainly that all plans granting benefits enumerated in section 186 are ERISA- regulated employee welfare benefit plans, the E&C Fund is subject to ERISA preemption on the same basis as the other six funds involved in this litigation. There is no set of facts potentially provable by the appellant which, under the com- plaint as framed, could change this outcome. V. CONCLUSION We need go no further.” The Funds’ proposed use of the Massachusetts mechanics’ lien law. Mass. Gen. L. ch. 254, is ‘To the extent that the amicus raises different grounds in support of reversal, we decline to consider those grounds. While amici are allowed to participate in appellate proceedings to help the reviewing court attain a just result, “[wle know of no authority which allows an amicus to interject into a case issues which the litigants, whatever their reasons might be, have chosen to ignore.” Lane v. First Nat'l Bank, 871 F.2d 166, 175 (1st Cir. 1989) a ee A20 thwarted by operation of ERISA § 514(a), 29 U.S.C. § 1144(a). The suit was properly dismissed on preemption grounds. Affirmed. Costs to appellee. A21 APPENDIX B United States Court of Appeals For the First Circuit No. 91-1318 JAMES L. McCOY, ADMINISTRATOR OF THE ELECTRICAL WORKERS TRUST FUNDS, LOCAL 103 I1.B.E.W., Plaintiff, Appellant, vs MASSACHUSETTS INSTITUTE OF TECHNOLOGY, Defendant, Appellee. JUDGMENT Entered: November 19, 199] This cause came on to be heard on appeal from the United States District Court for the District of Massachusetts, and was argued by counsel. Upon consideration whereof, It is now here ordered, ad- judged and decreed as follows: The judgment of the district court is affirmed. Costs to appellee. By the Court: s/ ___ Francis P. Scigliano Clerk —e A22 APPENDIX C UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS JAMES L. McCOY, ADMINISTRATOR OF THE ELECTRICAL WORKERS TRUST FUNDS, LOCAL 103 I.B.E.W. Plaintiff CIVIL ACTIOD v. No. 90-11925-5 MASSACHUSETTS INSTITUTE OF TECHNOLOGY Defendant MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO REMAND AND DEFENDANT’S MOTION TO DISMISS THE COMPLAINT March I, 199] SKINNER, D.J. This is an action brought by the plaintiff, James McCoy Administrator of the Electrical Workers Trust Funds (“th Funds”), Local 103 1.B.E.W., toenforce a lien against propert owned by the defendant Massachusetts Institute of Technolog: (“MIT”). The complaint was filed pursuant to M.G.L c. 25¢ in the Middlesex Superior Court. The defendant removed the case to this court on the grounds that the Administrator’s stat law action is preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seg The plaintiff now moves to remand the action back to th Superior Court on the grounds that this court lacks subjec matter jurisdiction over the state lien claim. MIT moves tc dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6 because the plaintiff ’s state law claim is preempted by ERISA. A23 Background Plaintiff is the Administrator of various funds established pursuant to the requirements of 29 U.S.C. § 186 (Complaint, 4 1,2). Participants of the Funds were employed by S.N. Brown Electrical Corporation (“Brown’’), a subcontractor, in the “erection, alteration, repair, or removal of the building” located at 143-153 Albany Street, Cambridge, Massachusetts. ({ 4) Defendant MIT is the owner of this property. ({| 3) The Administrator contends that Brown was an employer obligated to make contributions to the Funds under a collective bargain- ing agreement. The Funds are owed over $30,000 in unpaid employee benefit plan contributions. ({/ 7) After complying with all the procedural requirements of M.G.L. c. 254 to obtain a lien on the Albany Street property, on July 17, 1990, the Administrator filed a complaint to foreclose on the lien in the Middlesex Superior Court. (1 5, 6, 7, 8, 9, 11) Discussion The plaintiff asserts that this action should be remanded on the grounds that M.G.L. c. 254 is not preempted by ERISA and this court lacks subject matter jurisdiction to adjudicate the Administrator’s lien claim under chapter 254. The com- plaint makes no mention of ERISA or any other federal statute. The usual rule is that a cause of action arises under federal law for purposes of 28 U.S.C. § 1331 only when the plaintiff ’s well-pleaded complaint raises an issue of federal law. See Gully v. First National Bank, 299 U.S. 109 (1936); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908). Federal preemption is normally a federal defense to the plaintiff’s suit. As a defense, therefore, it does not appear on the face of a well-pleaded complaint, and does not authorize removal to federal court. Metropolitan Life Insurance Company v. Taylor, 481 U.S. 58, 63 (1987). The United States Supreme Court has noted, however, that “Congress may so completely pre-empt a A24 particular area that any civil complaint raising this select group of claims is necessarily federal in character.” Metropolitan Life, 481 U.S. at 63-64 (holding that common law contract and tort claims that are preempted by ERISA are removable to federal court). Under the reasoning of Metropolitan Life, if ERISA preempts the Administrator's state lien claim, then this court has subject matter jurisdiction over this action even though the complaint on its face states no federal cause of action. The issue I must decide in order to decide both the motion to remand and the motion to dismiss is whether M.G.L. c. 254 is preempted by ERISA. M.G.L. ¢ 254, § | reads: A person to whom a debt is due for personal labor performed in the erection, alteration, repair or re- moval of a building or structure upon land. . . shall have a lien upon such building or structure and upon the interest of the owner thereof in the lot of land upon which it is situated. . . . For purposes of this chapter, a person shall include any employee of any employer and the trustee or trustees of any fund or funds, established pursuant to section 302 of the Taft Hartley Law (29 USC 186), providing coverage or benefits to such person. The trustee or trustees of any such fund or funds shall have all the liens under this chapter that any person has. The trustee or trustees shall also have the right to enforce said liens pursuant to this chapter. Under 29 U.S.C. § 1144(a), ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan. . . .” (Emphasis added.) An excep- tion to the preemption provision is made for state laws regulat- ing insurance, banking, or securities. § 1144(b)(2). Chapter 254 is not such a statute. A25 The Supreme Court has referred repeatedly to “the expansive sweep of the preemption clause.” Pilot Life Insurance Com- pany v. Dedeaux, 481 U.S. 41, 47 (1987). The Court has stated that the phrase “relate to” should be given its broad common sense meaning, such that a state law “relates to” an employee benefit plan if it has a connection with or reference to such a plan. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983). Chapter 254 clearly “relates to” employee benefit plans and is, therefore, expressly preempted by 29 U.S.C. § 1144(a). The plaintiff argues that chapter 254 is not preempted be- cause Congress, in enacting § 515 ' and § 502(g)(2)? of ERISA, intended to supplement, not supersede, existing state law rem- edies for the collection of plan contributions. The Court in Pilot Life, however, held that the civil enforcement scheme provided by ERISA § 502(a) was intended to be exclusive: The policy choices reflected in the inclusion of cer- tain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA. “The six carefully integrated civil enforcement provisions found in § 502(a) of the statute Section 515, 29 U.S.C. § 1145 reads: “Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement.” * Section 502(g)(2), 29 U.S.C. § 1132(g)(2) reads: “In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan — (A) the unpaid contributions, (B) interest on the unpaid contributions, (C) an amount equal to the greater of — (i) interest on the unpaid contributions, or (ii) liquidated damages provided for under the plan . . ., (D) reasonable attorney's fees and costs of the action, to be paid by the defendant, and (E) such other legal or equitable relief as the court deems appropriate.” A26 as finally enacted . . . provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.” Pilot Life, 481 U.S. at 54 (citation omitted). The plaintiff claims that the holding in Pilot Life does not extend to actions by ERISA plans to recover delinquent con- tributions, and that ERISA does not preempt independent state law actions against nonemployers. In a case directly on point, however, the Court of Appeals for the Fifth Circuit held that a Louisiana statute similar to chapter 254 was preempted by ERISA. Jron Workers Mid-South Pension Fund v. Terotechnology Corp., 89i F.2d 548 (Sth Cir. 1990), cert. denied, 110 S.Ct. 3272 (1990). In Iron Workers, employee benefit plans brought suit both against a contractor which failed to make contributions to the plans as required by collective bargaining agreements and against the owner of the property on which the work was performed. Pursuant to a state lien statute, the funds attempted to enforce liens recorded against the property for contributions owed by the contractor. The court, interpreting Pilot Life, held that the state statute was preempted because it attempted to supplement the exclusive civil remedies provided by ERISA. 891 F.2d at 555. The court rejected the plaintiffs’ argument that the state statute was merely an aid to the enforcement of a judgment. The court noted that the lien statute did more than provide remedies for collecting judgments; it created substantive rights. Id. The Louisiana statute, like the Massachusetts statute, gave ERISA plans rights against not only employers but also property owners. Id. The court concluded that the legislative history of ERISA did not indicate any congressional intent to allow states to create new substantive rights for ERISA plans. /d. at 556. See also McMahon v. McDowell, 794 F.2d 100, 107 (3rd Cir. 1986), cert. denied, 479 U.S. 971 (1986) (holding that plaintiffs could A27 not enforce benefit plan contributions through a state regulation that circumvented ERISA’s enforcement scheme). Several state courts have addressed the issues raised by this case. The Court of Appeals of California held that a state mechanics’ lien law could not be used by a trust fund fiduciary to collect fringe-benefit contributions allegedly owed by a sub- contractor pursuant to a collective bargaining agreement. Car- penters Southern California Administrative Corp. v. El Capi- tan Development Co., 223 Cal. App. 3d 1034, 243 Cal. Rptr. 132 (Sth Dist. 1988), review granted, 246 Cal. Rptr. 209 (1988). The plaintiff has referred to two decisions holding thas State statutes were not preempted by ERISA, but neither deci- sion applies to the situation here. In Sasso v. Vachris, 66 N.Y.2d 28, 484 N.E.2d 1359, 494 N.Y.S.2d 856 (1985). the Court of Appeals of New York held that a state statute allowing employee benefit funds to recover unpaid contributions directly from the ten largest shareholders of a closely-held corporation was not preempted by ERISA. The court noted, however, that the effect of the state statute was merely to give plaintiffs an enforcement mechanism to recover payments the corporation was already obligated to provide under the collective bargain- ing agreement. 494 N.Y.S.2d at 859. In Plumber’s Local 458 Holiday Vacation Fund v. Howard Immel, Inc., 151 Wis.2d 233, 445 N.W.2d 43 (Ct. App. 1989), the Court of Appeals of Wisconsin held that Wisconsin’s construction lien law was not preempted by ERISA. The court distinguished the Califor- nia court’s decision in El Capitan by noting that the lien created by the California statute referred specifically to ERISA obliga- tions and created a remedy for the collection of ERISA obliga- tions that did not exist under the federal act. According to the Wisconsin court, ERISA does not preempt states from creating “general creditors’ rights that may be utilized to effect collec- tions of obligations by all creditors, including a creditor pos- sessing an ERISA claim that has been reduced to a judgment.” 445 N.W.2d at 46. A28 Chapter 254 does much more than provide funds with a method of collecting contributions already owed them under ERISA. Chapter 254 creates a whole new class of liable parties, property owners. The Administrator does not even allege a contractual or other relationship between the Funds and MIT. Nor does the complaint allege that MIT is an employer, par- ticipant, or plan beneficiary within the meaning of ERISA. | conclude that chapter 254 is preempted to the extent that it applies to employee benefit plans. In addition to claiming that ERISA does not preempt chapter 254, the plaintiff has presented two lesser arguments. First, the plaintiff claims that Fed. R. Civ. P. 64 authorizes the use of chapter 254 and, therefore, chapter 254 is saved from preemption by § 514(d) of ERISA, 29 U.S.C. § 1144(d).° Rule 64 makes available in federal district courts certain state law remedies that provide “for seizure of person or property for the purpose of securing satisfaction of the judgment ulti- mately to be entered in the action.” The remedies listed in Rule 64 include attachment, garnishment, sequestration, and “other corresponding or equivalent remedies.” Chapter 254 bears no relation to the remedies described in Rule 64. A lien foreclosure proceeding is not “equivalent” to any of the rem- edies listed in Rule 64 “because it is not a remedy against the judgment debtor or against a person who is personally indebted to, or in possession of the property of, the judgment debtor.” Bricklayers Fringe Benefit Funds v. North Perry Baptist Church, 590 F.2d 207, 209 (6th Cir. 1979), cert. denied, 444 U.S. 834 (1979) (affirming the dismissal of a mechanic’s lien foreclosure claim by union against property owners for fringe benefit contributions owed by the contractor). As I stated above, chapter 254 actually creates a substantive right for trustees ‘Section 514(d) reads: “Nothing in this subchapter shall be construed to alter, amend, modify, invalidafe, impair, or supersede any law of the United States . . . or any rule or regulation issued under any such law.” A29 of ERISA plans against owners of real property. Chapter 254 is not the type of statute contemplated by Rule 64, and, there- fore, is not saved from preemption by that rule. Finally, the Administrator claims that even if chapter 254 is preempted by ERISA, it is not preempted with respect to the Electrical Workers Educational and Cultural Fund, Local 103 I1.B.E.W., because that particular fund is not covered by ERISA. The Educational and Cultural Fund is one of seven funds on behalf of which the Administrator brought this action. The complaint states that all the Funds included in the action were established pursuant to the requirements of 29 U.S.C. § 186. (Complaint, § 2) Under § 3 of ERISA, 29 U.S.C. § 1002(1), funds established pursuant to § 186 are included in the term “employee welfare benefit plan” and, therefore, are covered by ERISA. In sum, the plaintiff’s state law claim against MIT is preempted by ERISA. Accordingly, plaintiff’s motion to remand is denied. De- fendant’s motion to dismiss the complaint for failure to state a claim upon which relief may be granted is allowed. /s/ Walter Jay Skinner United States District Judge A30 APPENDIX D UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS JAMES L. McCOY, ADMINISTRATOR OF THE ELECTRICAL WORKERS TRUST FUNDS, LOCAL 103 I.B.E.W. CASE NUMBER: Vv. No. 90-11925-S MASSACHUSETTS INSTITUTE OF TECHNOLOGY JUDGMENT IN A CIVIL CASE (] Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict. C] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered. IT IS ORDERED AND ADJUDGED PURSUANT TO THE COURT’S MEMORANDUM AND ORDER... . DATED MARCH 1, 1991, THAT THE COMPLAINT IN THE ABOVE ENTITLED CASE IS HEREBY DISMISSED. DATED: March 5, 1991 /s/ Robert J. Smith, Jr. Clerk /s/ Philip J. Lyons (By) Deputy Clerk A31 APPENDIX E COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS SUPERIOR COURT CIVIL ACTION NO. 90-4936 JAMES L. McCOY, ADMINISTRATOR OF THE ELECTRICAL WORKERS TRUST FUNDS, LOCAL 103 I.B.E.W. Plaintiff V. COMPLAINT MASSACHUSETTS INSTITUTE OF TECHNOLOGY, Defendant PARTIES 1. Plaintiff is James L. McCoy, Administrator (hereinafter Administrator’) of the Electrical Workers Trust Funds, Local 103 I.B.E.W. (hereinafter the ““Funds”’) on behalf of the Trus- tees of said Funds. The Funds include the Electrical Workers Pension Fund, Local 103, I.B.E.W., the Electrical Workers Deferred Income Fund, Local 103, 1.B.E.W, Local Union No. 103, 1.B.E.W., Health and Welfare Fund, the Electrical Work- ers Holiday, Vacation and Supplementary Unemployment Ben- efits Fund, Local 103, 1.B.E.W., the Electrical Workers Edu- cational and Cultural Fund, Local 103, I.B.E.W., the Joint Apprenticeship and Training Trust Fund, Local 103,1.B.E.W., and the National Electrical Benefits Fund. Pursuant to G.L. c. 254, § 5, parties also include any “persons in interest” as defined by G.L. c. 254, § 5 who may become parties. site secnethiais iii aii esi A32 2. The Funds were established pursuant to the requirements of 29 U.S.C. § 186. 3. Defendant Massachusetts Institute of Technology is the duly recorded owner of property situated at 143-153 Albany Street, Cambridge, Middlesex County, Massachusetts. De- fendant has a usual place of business at 77 Massachusetts Avenue, Boston, Massachusetts 02139. G.L. c. 254, § 4 Claim 4. The S.N. Brown Electrical Corp. (hereinafter “S.N. Brown”) was a subcontractor who employed participants of the Funds during the months of March, April and May, 1990. Said participants performed labor in the erection, alteration, repair, or removal of the building located at 143-153 Albany Street, Cambridge, Middlesex County, Massachusetts and owned by Defendant. 5. Pursuant to the statutory provisions of G.L. c. 254, § 4, Plaintiff filed a Notice of Contract on May 23, 1990 in the Registry of Deeds. Said Notice of Contract, which describes the property in question, is attached hereto and incorporated herein by reference as Exhibit “A.” 6. A copy of Exhibit A was hand delivered to the Defendant on May 23, 1990, and actual notice of Plaintiff's claim has been provided to the Defendant. A copy of said notice is attached hereto and incorporated herein by reference as Exhibit “B". 7. Pursuant to the statutory provisions of G.L. c. 254, § 8 Plaintiff filed a Sworn Statement on May 29, 1990 in the Registry of Deeds. A true copy of said Sworn Statement is attached hereto and incorporated herein by reference as Exhibit “C”. Said Statement of Account shows that Plaintiff is owed the estimated principal amount of $30,000.00, plus interest, costs and attorney's fees. A33 8. Defendant has failed or refused to pay the claim despite demand to do so. 9. The Plaintiff established a lien against said property in the estimated amount of $30,000.00, plus interest, costs and attorney’s fees. WHEREFORE, the Plaintiff pray’s for the following relief: 1. That the Court enter judgment against the Defendant Massachusetts Institute of Technology, and award Plaintiff the principal estimated amount of $30,000.00, or such other sum as may be owed upon judgment, plus interest, costs and attor- ney's fees. 2. That the Court order a sale of the property at 143-153 Albany Street to satisfy Plaintiffs claim and any other persons in interest or parties in interest as provided by G.L. c. 254, § 5. 3. That the Court grant such other and further relief as it deems proper. COUNT II 10. Plaintiff hereby restates the allegations contained in paragraphs one through nine of the instant Complaint. 11. Pursuant to the statutory provisions of G.L. c. 254, $§ | and 8, Plaintiff filed a Sworn Statement on May 29, 1990 in the Registry of Deeds. WHEREFORE, the Plaintiff prays for the following relief: |. That the Court enter judgment against Defendant Massa- chusetts Institute of Technology and award Plaintiff the prin- cipal estimated amount of $30,000.00, plus interest, costs and attorney's fees. 2. That the Court order a sale of the property at 143-153 Albany Street to satisfy Plaintiff's claim and any other persons in interest or parties in interest s provided by G.L. c. 254, §S. A34 3. That the Court grant such other and further relief as it deems proper. Respectfully submitted, JAMES L. MCCOY, ADMINISTRATOR OF THE ELECTRICAL WORKERS TRUST FUNDS, LOCAL 103 I.B.E.W. By his attorneys, Murphy, Hesse, Toomey & Lehane 300 Crown Colony Drive Suite 410 P.O. Box 9126 Quincy, MA 02269-9126 (617) 479-5000 Dated: July 16, 1990 /s/ David W. Healey David W. Healey BBO #548262 A TRUE COPY: ATTEST: /s/ __ MaryE. Rosa Deputy Assistant Clerk A35 Ex. A NOTICE OF CONTRACT G.L. c. 254, Section 4 NOTICE is hereby given that by virtue of a written contract, namely a collective bargaining agreement, between S.N. BROWN ELECTRICAL CORP. of 859 Providence Highway, Dedham, MA 02026, subcontractor and the Local Union No. 103 of the International Brotherhood of Electrical Workers, AFL-CIO, said members of said Union and employees of S.N. BROWN ELECTRICAL CORP. and participants in the Elec- trical Workers Trust Funds, Local 103 I.B.E.W. are to furnish or have furnished labor or perform or have performed labor in the erection, alteration, repair or removal of a building or structure by the S.N. BROWN ELECTRICAL CORP. subcon- tractor for the Massachusetts Institute of Technology, a Mas- sachusetts corporation with a mailing address of Massachusetts Avenue, Cambridge, Massachusetts as described as follows: PARCEL I |. The parcel of land with the buildings and other structures thereon believed to contain about 50,651 square feet bounded: Southeasterly on Albany Street about 243 feet; Southwesterly on land now or formerly of Stimpson about 222.84 feet; and Northwesterly on the southeasterly sideline of Purrington Street about 243 feet; and Northeasterly on the southwesterly sideline of Cross Street about 222.84 feet. Also conveying herewith all of the Grantor’s rights, title and interest, in and to Purrington Street and Cross Street. For Owners title reference see Deed at Middlesex County Registry of Deeds at Book 10566, Page 409. A36 Said contract contains an expiration or completion date of August 31, 1991. TRUSTEES OF THE ELECTRICAL WORKERS PENSION FUND, LOCAL 103 I.B.E.W., the ELECTRICAL WORKERS DEFERRED IN- COME FUND, LOCAL 103, I.B.E.W., the LOCAL UNION NO. 103 I.B.E.W., HEALTH AND WELFARE FUND, the ELECTRICAL WORKERS HOLIDAY, VACATION AND SUP- PLEMENTARY UNEMPLOYMENT BENE- FITS FUND, LOCAL 103 I.B.E.W., the ELEC- TRICAL WORKERS EDUCATIONAL AND CULTURAL FUND, LOCAL 103 1.B.E.W., the JOINT APPRENTICESHIP AND TRAINING TRUST FUND, LOCAL 103 I.B.E.W. AND THE NATIONAL ELECTRICAL BENEFITS FUND By their Administrator and Agent Hereto Duly Authorized: Witness my hand and seal /s/ James L. McCoy James L. McCoy Administrator COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. May 23, 1990 Then personally appeared before me the above named James L. McCoy, Administrator and Authorized Agent of the Trus- tees of the Electrical Workers Pension Fund, Local 103 A37 I.B.E.W., the Electrical Workers Deferred Income Fund, Local 103 I.B.E.W., the Local Union No. 103, I.B.E.W.., Health and Welfare Fund, the Electrical Workers Holiday, Vacation and Supplementary Unemployment Benefits Fund, Local 103 I.B.E.W., the Electrical Workers Educational and Cultural Fund, Local 103 I.B.E.W., the Joint Apprenticeship and Training Trust Fund, Local 103 I.B.E.W. and the National Electrical Benefits Fund who being duly sworn did attest to being the Administrator and/or agent of said aforementioned Funds, and that the foregoing Notice of Contract was signed on behalf of and by the authority of the Trustees of said aforementioned Funds, and that said instrument was acknowl- edged to be the free act and deed of the Trustees of said aforementioned Funds. > Notary Public My Commission expires: 11/12/94 A38 Ex. B MURPHY, HESSE, TOOMEY and LEHANE ATTORNEYS AT LAW CROWN COLONY PLAZA 300 CROWN COL [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0215%3A1. Public record. Not legal advice.