OPINION & ORDER
This is the latest in what is now an eight-year saga of lawsuits. Plaintiffs, who are trustees and fiduciaries of various employer contribution funds governed by the Employment Retirement Income Security Act of 1974, as amended by the Mul-tiemployer Pension Plan Amendments Act of 1980, 29 U.S.C. § 1132 et seq.,
I. BACKGROUND
The following is based on allegations in the operative Amended Complaint (the “Complaint”), documents attached to or integral to the Complaint, and facts of which the Court is permitted to take judicial notice. As required for the present motion, all factual .allegations in the Complaint are assumed to be true.
A. The Parties
Plaintiffs are the trustees and fiduciaries (the “Trustees”) of the Local- 553 Benefit Fund, the Local 553 Pension Fund and the Local 553 Deferred Compensation Fund (the- “Funds”). The Funds are multi-em-ployer employee benefit plans governed by ERISA. The Funds collect and receive contributions and provide benefits to eligible participants pursuant to agreements between Local 553 and the participants’ employers.
This case arises out of the failure of two non-parties to make payments to the Funds between 2007 and 2009. The two non-parties are Anchor Tank Lines Corp. (“Anchоr I”), known until August 2008 as Mystic Tank Lines Corp., and Reliable Transit Corp. (“Reliable”), known until September 2007 as Anchor Transit Corp. Reliable was a wholly owned subsidiary of Anchor I. Anchor I and Reliable were in the business of transporting “oil and other products” in and around New York City, and operated out of 19-01 Steinway Street, Queens, New York.
Anchor I and Reliable employed Local 553 members and were required to make monthly contributions to the Funds pursuant to collective bargaining agreements with Local 553. Reliable was also obligated to pay withdrawal liability to one of the Funds for its proportionate share of the-Fund’s unfunded vested benefits. According to the Complaint, Defendants Leonard Baldari, Robert Baldari and Michael David Hiller (“Hiller”) (collectively, the “Individual Defendants”) “were the principal owners and/or еxecutives of Anchor I and Reliable, which were closely held entities.” The Individual Defendants controlled whether and to what extent Anchor I and Reliable contributed to the Funds.
On July 12, 2007, Defendants Leonard Baldari and Hiller were indicted in the United States District Court for the Eastern District of New York. The indictment charged that Leonard Baldari and Hiller used Anchor I, Reliable and. other entities to embezzle interstate shipments of oil products and conspired to launder money. The Indictment was unsealed on July 19, 2007. See United States of America v. Leonard Baldari, No. 07 Cr. 568 (Ed.N.Y.) (“U.S. v. Baldari”), Dkt. No. 4. The Indictment identifies Leonard Baldari as the majority shareholder of Anchor I and a 50% owner of Reliable, and Hiller as the Chief Financial Officer of Anchor I and the president and 50% owner of Reliable. U.S. v. Baldari, Dkt. No. 1, ¶¶6-7. The Indictment alleges that,' upon the conviction of Leonard Baldari. and-Hiller, the Government would seek forfeiture of property including:
• “A sum of money equal to at least approximately $50,000,000 in United States currency for which [LeonardBaldari and Hiller] are jointly and severally liable”;
• “All right, title and interest of [Leonard Baldari and Hiller] in [Anchor I], and all the proceeds traceable thereto”; and
• “All right, title and interest of [Leonard Baldari and Hiller] in [Reliable], and all the proceeds traceable thereto.” Id. at ¶¶ 21(d)-(e), 23(d)-(e).
The criminal case remains open, and neither a criminal forfeiture order nor any judgment of conviction appears on the docket.
Defendants Anchor Tank Lines LLC (“Anchor II”) and Tank Acquisition Company LLC (“Tank”) (collectively, the “Tank Defendants”) are sued in the present action as successors to Anchor I and Reliable. The Tank Defendants were formed in December 2010 to acquire the assets of Anchor I and/or Reliable after they were forfeited to the Government. In March 2011, the Tank Defendants purchased almost all of Anchor I’s assets. Like Anchor I and Reliable before them, the Tank Defendants’ principal place of business is 19-01 Steinway Street in Queens, New York, and their business is the transport of “oil and other products” in and around New York City. The Complaint alleges a “complete continuity of operations” between Anchor I and Reliable on the one hand, and the Tank Defendants as their successors. The Tank Defendants are owned by non-parties to this action. Defendants Leonard and Robert Baldari are now full time employees of the Tank Defendants.
B. Litigation by the Trustees on Behalf of the Funds
1. Demopoulos v. Mystic Tank Lines Corp. [i.e„ Anchor I], 07 Civ. 9451
On October 27, 2007, approximately three months after Baldari and Hiller’s indictment, the Trustees commenced an action against Anchоr I in this Court to recover unpaid contributions to the Funds. See Demopoulos v. Mytic Tank Lines Corp., 07 Civ. 9451 (S.D.N.Y.) (“Demopoulos I”), Dkt, No. 1. Demopoulos I named only Anchor I as defendant and sought to recover unpaid Fund contributions for the period June 1, 2007, to August 31, 2007. Id. at ¶ 9.
On December 6, 2008, the parties in Demopoulos I and Leonard Baldari (who was not a defendant in the action) entered into a settlement agreement, which Judge Denny Chin “so ordered” and entered on the docket on January 8, 2009. Id., Dkt. No. 47. The agreement recited that “[Anchor I], the Trustees and Leonard Baldari are desirous of resolving the disputes and disagreements that exist between them.” The settlement obligated Anchor I to make future payments to the Funds and pay $584,524.42 plus 8% interest, and provided that “Leonard Baldari, Owner of [Anchor I] hereby undertakes to personally guarantee the liability of [Anchor I] ... in the amount of $650,000.” Id., Dkt. No. 47 at ¶¶ 3, 6. The agreement also provided that if Anchor I sold its stock or “substantially аll of [its] assets,” the “purchaser or transferee of the stock or assets will be liable for all of the obligations of [Anchor I.]” Id., Dkt. No. 47 at ¶ 17. In a separate personal guaranty, Leonard Baldari warranted that there was “no action, claim, suit or proceeding ... pending or threatened against or affecting the Guarantor or any of Guarantor’s properties before any court ... which could or might result in any material adverse change [to] the Guarantor.” On March 13, 2009, Judge Chin “so ordered” an amendment to the parties’ settlement, which added attorneys’ fees to the amount owed by Anchor I and reflected that Anchor I’s name had changed
Anchor I paid $90,196.55 before it defaulted and was sold. On September 15, 2010, judgment was entered to enforce the settlement, adding Baldari as an additional defendant, and ordering payment of $866,238.35, of which $559,803.45 was the unpaid portion of Baldari’s guarantee. Id., Dkt. No. 56. A virtually identical judgment updating the interest due was entered on the docket on February 8, 2011, for $966,727.83. Id., Dkt. No. 57. This amount remains outstanding.
2. Demopoulos v. Anchor Transit Corp. [i.e„ Reliable], 08 Civ. 5860
On June 30, 2008, almost one year after Baldari and Hiller’s indictment, the Trustees commenced a separate action in this Court against Reliable as the sole defendant to recover unpaid contributions to the Funds. See Demopoulos v. Anchor Transit Corp., No. 08 Civ. 5860 (S.D.N.Y.) (“De-mopoulos II”), Dkt. No. I.
3. Demopoulos v. Reliable Transit Corp., 10 Civ. 8324
In November 2009, Reliable permanently stopped contributing to the Funds. In January 2010 and again in March 2010, the Funds sent Reliable two notices informing it of the default and demanding payment for withdrawal liability under the terms of the relevant collective bargaining agreement with the Funds. Reliable failed to make any payment. On- November 4, 2010, the Trustees commenced an action in this Court to recover the amount owed as withdrawal liability. See Demopoulos v. Reliable Transit Corp., No. 10 Civ. 8324 (Demopoulos III), Dkt. No. 1. Only Reliable, was named as a defendant, and it did not appear in the action. On February 1, 2011, Judge Louis Stanton entered a default judgment against Reliable in favor of the Trustees for $1,365,050.92. Id., Dkt. No. 7. This judgment amount also remains outstanding.
C. The Trustees Appear in Anchor I’s Bankruptcy Action
On June 3, 2010, Anchor I filed a petition for Chapter 11 bankruptcy protection in the United States Bankruptcy Court for the Eastern District of New York. In re Anchor Tank Lines Corp., No. 10-45230 (Bankr.E.D.N.Y.) (“In re Anchor I”), Dkt. Nоs. 1-4. Leonard Baldari filed the Affidavit in .support of the petition as Chief Executive Officer of Anchor I. Id., Dkt. No. 2. Within a week, on June 8, 2010, the Trustees filed a notice of appearance in the Bankruptcy Action as creditors of Anchor I. Id., Dkt. No. 32. Ten days later,' the Government moved to dismiss the bankruptcy action explaining that Leonard Bal-dari, the sole shareholder of Anchor I, did not have authority to file the petition because he had forfeited all of his interest in Anchor I to the United States in criminal forfeiture proceedings in United States v. Baldari. Id., Dkt. No, 52 at 1-3. On June 29, 2010, the bankruptcy action was
D. Trustees Seek to Intervene in U.S. v. Baldari
•In an effort to collect on their judgments, the Trustees restrained bank accounts held by Anchor I and Reliable and obtained writs of execution against assets held in those accounts. They sought an execution by the City of New York’s Sheriff to seize Anchor I’s vehicles and obtained a lien against specific vehicles. On October 13, 2010, the Government wrote to the Trustees'and the Sheriff stating that a sealed forfeiture order in U.S. v. Baldari required all of Leonard Baldari’s assets and those of Anchor I and Reliable to be paid to the Government to satisfy Baldari’s $50 million forfeiture debt. The Sheriff stopped all collection efforts on behalf of the Trustees.
' On December 20, 2010, the Trustees filed a létter in U.S. v. Baldari, seeking to intervene and obtain disclosure of the forfeiture order. Id., Dkt. No. 83. On March 25, 2011, the district court denied the Trustees’ motion. Id., Dkt. No. 93.
E. Trustees Commence the Present Action
The Trustees commenced this action on September 30, 2014, and filed the operative First Amended Complaint (the “Complaint”) ón January 8, 2015. The Complaint alleges five causеs of action, four of which purport to be based on ERISA as follows: The Trustees assert one claim solely against the Individual Defendants, alleging that they breached their fiduciary obligations to the Funds under ERISA by failing to make contributions and instead retaining the monies for their own ;use. The Trustees assert two claims, both purportedly under ERISA, against the Tank Defendants as successors to Anchor I and Reliable — the first for failure to make contributions to the Funds and the failure (presumably of Anchor I) to make payments under the settlement agreement in Demopoulos I; and the second on a theory of unjust enrichment. The fourth and final purported ERISA claim seeks an accounting from all Defendants “of all sums owed to the Funds,” based on the general remedies section of ERISA. The fifth cause of action, which is against Leonard Baldari, seeks to enforce- his personal guaranty of the settlement in Demopoulos
I.
The Complaint asserts subject matter jurisdiction based on federal claims arising under ERISA, 29 U.S.C. § 1132(e), and presumably relies on supplemental and ancillary jurisdiction for its remaining claims, 28 U.S.C. §• 1367(a).
On May 18, 20Í5, the Tank Defendants filed a Third Party Complaint against the United States for indemnification and breach of contract.'
II. LEGAL STANDARD
The Individual Defendants move to dismiss the Complaint on the merits as untimely. On a motion to dismiss on the merits under Rule 12(b)(6), courts accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the non-moving party. See Keiler v. Harlequin Enters. Ltd.,
Because the statute of limitations is an affirmative defense, Defendants carry the burden of showing that Plaintiff failed to plead timely claims. While dismissing claims on statute of limitations grounds at the complaint stage “is appropriate only if a complaint clearly shows the claim is out of time,” Harris v. City of New York,
The Tank Defendants argue that once the Individual Defendants are dismissed, the Court must dismiss- the Tank Defendants for lack of subject matter jurisdiction. In defending against a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of proving the court’s jurisdiction by a preponderance of the evidence. Makarova v. United States,
III. DISCUSSION
A. The ERISA Claim Against the Individual Defendants
The first cause of action alleges that the Individual Defendants “caused [Anchor I and Reliable] to not make the required contributions to the Funds,” and thereby breached their fiduciary duties to the Funds under ERISA. The Complaint describes delinquent contributions and failure to pay withdrawal liability that were the subject of the Trustees’ previous litiga-tions and judgments against Anchor I and Reliable in Demopoulos I, II and III. The present belated claim for breach of fiduciary duty against the Individual Defendants falls outside the statutory limitations period and is dismissed.
The statute of limitations that applies to actions for breach of fiduciary duty under ERISA states:
No action may be commenced under this subchapter with respect to a fiduciary’s breach of any responsibility, duty, or obligation under this part, or with respect to a violation of this part, after the earlier of—
(1) six years after
(A) the date of the last action which constituted a part of the breach or violation, or
(B) in the case of an omission the latest date on which the fiduciarycould have cured the breach or violation, or
(2) three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation; except that in the case of fraud or concealment, such action may be commenced not later than six years after the date of discovery of such breach or violation.
29 U.S.C. § 1113. The statute “provides three alternative limitations periods, depending on the underlying factual circumstances.” Janese v. Fay,
The second alternative — three years from Plaintiffs’ actual knowledge — is controlling here because it is the earliest of the three dates, and because the third alternative does not apply. The pleadings and judicially-noticed court filings described above establish that Plaintiffs had actual knowledge of Defendants’ alleged breach no later than 2010. The Complaint therefore was required to be filed within three years, or by 2013. The original Complaint was not filed until September 30,- 2014. Consequently the ERISA claim against the Individual Defendants is time barred.
The Trustees do not and cannot dispute that by at least 2009, when the last of the required payments at issue was not made, the Trustees had actual knowledge that fiduciаries to the Funds had caused Anchor I and Reliable not to make the payments. Nothing was hidden or secret. When the money was not received, it was apparent the payments had not been made. The failure to make contributions was the basis for both Demopoulos I and Demopoidos II, filed in 2007 and 2008 respectively; and the failure to pay for withdrawal liability was the basis for Demopoidos III filed in 2010.
By 2010, the Trustees knew the identities of all three Individual Defendants as persons who controlled Anchor I and Reliable. This control — and its manifestations in the form of signing checks and directing money between accounts — is the only basis for the fiduciary duty claim against the Individual Defendants. First, as to Defendant Leanord Baldari, the 2007 Indictment in United States v. Baldari, identifies him as the “sole shareholder” of Anchor I. U.S. v. Baldari, Dkt. No. 1, ¶¶ 6-7. In 2008, Leonard Baldari was a party to and personally guaranteed the Demopoulos I settlement between the Trustees and Anchor L Demopoulos I, Dkt. No. 19, ¶ 6. In the settlement agreement, he is described as “owner” of Anсhor I, and on the signature page, his signature appears twice — once as “President” of Anchor I and once on his own behalf. Id. In 2010, in the Anchor I bankruptcy action, in which the Trustees had appeared, Leonard Baldari similarly was described as the Chief Executive Officer and sole shareholder of Anchor I and filed the affidavit in support of Anchor I’s
Second, as to Defendant Robert Baldari, in 2009, he signed the stipulated judgment between the Trustees and Reliable in Demopoulos II as President of Reliable regarding Reliable’s obligations to make payments to the Funds. Demopoulos II, Dkt. No. 19 at 3. Finally, as to Defendant Hil-ler, he was indicted with Leonard Baldari in 2007. The Indictment describes him as the Chief Financial Officer of Anchor I and the president and 50% owner of Reliable, and seeks to make subject to forfeiture all of his interest in Anchor I and Reliable. Regardless of when the Trustees first saw the Indictment, they knew of its contents in 2010 when they sought to intervene in the criminal ease and when the Government moved to dismiss the Anchor I bankruptcy case, in which the Trustees had appeared.
Therefore, by 2009 the Trustees knew that fiduciaries who controlled Anchor I and Reliable had breached their duty between 2007 and 2009 to ensure that the companies made the required payments. By 2010, the Trustees knew the identities of all three Individual Defendants in relation to Anchor I and Reliable and could definitively infer their attendant fiduciary obligations to the Funds. Accоrdingly, this law suit, which was not commenced until 2014, is time, barred under ERISA’s second statutory limitations period—three years from when the Plaintiffs had actual knowledge that “an ERISA fiduciary has breached his or her duty.”
Contrary to the Trustees’ argument, the third period of six years has no application here. As explained above, the six-year statute of limitations applies “in the case of fraud or concealment”—i.e., where “a fiduciary; (1) breached its duty by making a knowing misrepresentation or omission of a material fact to induce an employee/beneficiary to act to his' detriment; or (2) engaged in acts to hinder the discovery of a breach of fiduciary duty.” Caputo,
The Trustees advance a series of flawed arguments to claim that they never had “actual knowledge” to trigger the three-year statute of limitations. First, they insist that the Court must refrain from relying on documents not “integral” to. the Complaint, such as the Indictment in U.S. v. Baldari, to find aсtual knowledge. To the contrary, on a motion to dismiss, “[o]f course,” a court “may ... consider matters of which judicial notice may be taken under Fed.R.Evid. 201,” such as court filings in another case. Kramer,
Second, the Trustees argue that the “mere fact” that the Individual Defendants had been identified in prior filings as principals and senior officers—“owner,” “president,” “sole shareholder” and “chief financial officer”—says nothing about whether they had enough control to disburse the plan assets, and therefore the Trustees did
Third, the Trustees argue that they will not have all the material facts as to the Individual Defendants’ breach until they see the plan of distribution of Anchor I’s assets as laid out in the criminal forfeiture order. The criminal forfeiture order and its plan of distribution áre irrelevant to the question of when the Trustees knew that fiduciaries breached their duties to the Funds by failing to make certain required payments between 2007 and 2009. .
The Trustees argue in the alternative that, even if their claim is untimely, the statute of ‘ limitations should be tolled “to this day.” However, the Trustees fail to address the threshold issue of whether equitable tolling applies to ERISA fiduciary duty claims, despite and in addition to the six-year “fraud or concealment” limitations period in 29 U.S.C. § 1113. At least two federal circuit courts have answered in the negative and concluded that the six-year “fraud or concealment” period reflects Congress’ limited provision for any tolling. See, e.g., Fulghum v. Embarq Corp.,
The Trustees argue that the Individual Defendants engaged in fraudulent concealment when they “egregiously concealed from Plaintiffs material facts regarding the use , or disposition of plan assets.” The Trustees essentially claim that tolling is warranted because the Individual Defendants signed the various settlements and stipulated judgments with the Trustees without disclosing the Government’s forfeiture claims on the assets of Anchor I, Reliable and Leonard Baldari. However, even' if such non-disclosure were fraudulent, it did not “conceal material facts” related to the non-payment' of contributions to the Funds between 2007 and 2009 and similarly did npt conceal the “nature of the claim” against the Individual Defendants.
On the present record, the Trustees were not prevented from suing the Individual Defendants within the three-year limitations period. Instead, the Trustees made a strategic choice not to pursue the Individual Defendants in the' prior actions when their claim would have been timely. Consequently, the Trustees are not entitled to equitable' tolling. The ERISA breach of fiduciary duty'claim against the Individual Defendarit's is dismissed as time barred.
B. Successor Liability of the Tank Defendants ■
The three сlaims against the Tank Defendants solely in their capacity as successors to Anchor I and Reliable are dismissed for lack of subject matter jurisdiction. These are the claims for delinquent payments, unjust enrichment and an accounting.
Although the Complaint alleges subject matter jurisdiction based on-ERISA and all three claims against the Tank Defendants mention ERISA, Plaintiff does not argue that these claims arise under ERISA or give rise to federal subject matter jurisdiction. Instead Plaintiff argues that the court may exercise “ancillary jurisdiction,” but invokes the principles of supplemental jurisdiction.
'Ancillary jurisdiction and supplemental jurisdiction, though related, are distinct.
Ancillary jurisdiction extends to “related proceedings that are technically separate from the initial case that invoked federal subject matter jurisdiction.” 13 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3523.2 (3d ed.2008) (emphasis added). “At its heart, ancillary jurisdiction is aimed at enabling a court to administer justice within the scope of its jurisdiction.” Garcia v. Teitler,
1. Ancillary Jurisdiction
This Court does not possess ancillary jurisdiction over the claims against the Tank Defendants here. This conclusion is mandated by the Supreme Court’s decision in Peacock v. Thomas,
The facts of Peacock are similar to those in the present case. The plaintiff in Peacock obtained a judgment against a corporation for violation of fiduciary duties under ERISA.
First, the Supreme Court held that plaintiff had not stated a claim arising under ERISA and therefore could not invoke federal subject matter jurisdiction. “ERISA does not provide for imposing liability for an extant ERISA judgment against a third party.” Id. at 353,
Second, the Supreme Court held that federal courts do not “possess ancillary jurisdiction over new actions in which a federal judgment creditor seeks to impose liability for a money judgment on a person not otherwise liable for the judgment.” Id. at 351,
Applying these principles, this Court lacks both federal question jurisdiction and ancillary jurisdiction over the claims against the Tank Defendants based on successor liability. As Judge Deborah Batts recently explained in a similar action against the Tank Defendants brought by different trustee plaintiffs:
As in Peacock, Plaintiffs filed an earlier ERISA claim and obtained á judgment against employers who had failed to make the required contributions to an employee benefit plan. Like the Plaintiff in Peacock, when Plaintiffs were unable to collect on that judgment, they filed a second ERISA action which sought to impose liability on entities that had not been parties to the first action. And like the Plaintiff in Peacock, Plaintiffs seek to apply the earlier judgment to these entities under a corporatе identity theory, here, that Defendants are the successors or alter egos [of the employers].
Romita v. Anchor Tank Lines, LLC, No. 11 Civ. 9641,
2. Supplemental Jurisdiction
Assuming for purposes of this motion that this Court has supplemental jurisdiction over the claims against the Tank Defendants, it declines to exercise that jurisdiction. The Trustees’ claim against the Individual Defendants for breach of their ERISA fiduciary obligations, although now dismissed, was a claim that arose under ERISA and provided federal question jurisdiction over this, action. See 29 U.S.C. § 1132(e). This Court therefore has supplemental jurisdiction over the claims against the Tank Defendants to the extent that they “form part of the same case or controversy under Article III,” ie., if they arise from a common nucleus of operative fact. 28 U.S.C. § 1367(a). To the extent the Court has supplemental jurisdiction, the Court declines to exercise it because “all claims over which it has original jurisdiction” have been dismissed. Id. § 1367(c)(3).
C. Leonard Baldari’s Personal Guaranty
Finally, the Trustees’ claim to enforce Leonard Baldari’s personal 'guaranty in Demopoulos I, Dkt. Nos. 56, 57, is also dismissed for lack of subject matter-jurisdiction, and in the alternative is barred by res judicata and merger.
1. Jurisdiction
I do not have jurisdiction over this claim under the enforcement branch of ancillary jurisdiction". The judge assigned to Demopoulos I — if there were such a judge — would. “A federal court does not automatically retain jurisdiction to hear a motion to enforce or otherwise apply a settlement in a case that it has previously dismissed.” StreetEasy, Inc. v. Chertok,
I have not been assigned Demo-poulos I and therefore do not have ancillary jurisdiction. See Vill. of W. Hampton Dunes v. New York, No. 14-CV-3299,
I also do not have supplemental jurisdiction over this claim as “so related” to the breach of fiduciary duty claim against the Individual Defendants as to form part of the same case or cоntroversy. See 28 U.S.C. § 1367(a). There is no “common nucleus of operative fact,” Achtman v. Kirby, McInerney & Squire, LLP,
2. Res Judicata and Merger
In the alternative, to the extent I have jurisdiction, the principles of res judicata and merger bar the claim against Leonard Baldari for his liability under the personal guaranty. Under the doctrine of res judicata, which is very similar to merger, “[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” EDP Med. Computer Sys., Inc. v. United States,
The Trustees argue that .because Leonard Baldari “waive[d] ... all rights to interpose any defenses other than actual payment of the moneys owed in any action brought to enforce th[e] Guaranty,” he may not raise the affirmative defense of res judicata. - However, “a court is free to raise that defense [of res judicata] sua sponte, even if the parties have seemingly waived it.” Scherer v. Equitable Life Assurance Soc’y of U.S.,
Sua sponte dismissal of the claim -to enforce Baldari’s personal guaranty in De-mopoulos I is warranted. The Complaint alleges that “Defendant Leonard Baldari is personally liable under the terms of the personal guaranty he executed pursuant to the settlement agreement” in' Demopoulos I, and that after the settlement agreement was breached, he-“made no payments as required.” The Trustees seek $966,727.83 for which Baldari is individually liable to the Funds. However, the Trustees have already obtained a judgment granting the same relief for the same harm in Demopoulos I. Demopoulos I, Dkt. No, 57.
It is not clear from [the] [C]omplaint whether [the Trustees are] suing [Bal-dari] on the prior judgment or whether [they are] suing for a second time on the original claim. If it is the latter, [they have] no cause of action. ‘Once a claimis reduced to judgment, the original claim is extinguished and merged into the judgment; and a new claim, called a judgment debt, arises.’ If it is the former, suit on the judgment is a useless act, giving [the Trustees] no greater security than [they] already had and imposing an unnecessary burden on an already overburdened court.
Davis v. Musler,
The Trustees erroneously argue that that the present cause of action is based on a different “set of facts,” namely Baldari’s deception regarding his ability to satisfy the personal guaranty, that could not have been raised in Demopoulos I. Even assuming that Baldari’s deception is relevant, res judicata would apply. No later than October 2010, the Government wrote the Trustees a letter informing thеm of Baldari’s substantial debt to the Government. The final judgment was entered on the docket in February 2011, more than three months later. To the' extent Baldari’s omission was relevant to enforcing the judgment against him based on the personal guaranty, the Trustees could have raised the issue in Demopoulos I.
IV. CONCLUSION
For the foregoing reasons, the Defendants’ motions to dismiss are GRANTED.
No later than July 27, 2015, the Tank Defendants shall file a letter on EOF explaining how they plan to proceed with their Third Party Complaint.
The Clerk of Court is directed to close the motions at Dkt. Nos. 22 and 28, and terminate all Plaintiffs from this action.
SO ORDERED.
Notes
. The operative complaint in Demopóulos II is not available on the-electronic docket, and no party has appended it as an exhibit to any submission. -
. In concluding that equitable tolling applies to ERISA fiduciary duty claims, Guo relies on cases involving denial of benefits under ERISA-governed plans. See Guo,
. To the extent the Trustees can raise these claims in state court, they will not be preju