Court Denies CBO Glass Officials' Motion to Dismiss
July 6, 2012

by Penny Stacey, pstacey@glass.com

The U.S. District Court for the District of Maryland has denied a motion made by two CBO Glass executives who requested that the court dismiss a case against them, alleging "lack of personal jurisdiction" in Maryland. The denial is the latest in a case filed against the company and its president and CEO, Gilbert DiMaio, and principal, Paul F. Hogan, claiming that the company "failed to pay amounts due under the Labor Contracts, Trust Agreements and Plan."

While U.S. District judge Ellen Lipton Hollander writes that "it appears to be undisputed that Mr. DiMaio and Mr. Hogan, who are both New York residents, lack sufficient minimum contacts with Maryland to be subject to personal jurisdiction here under ordinary principles of personal jurisdiction," she points out that the case arises under the Employee Retirement Income Security Act (ERISA). ERISA, she writes, "authorizes exercise of personal jurisdiction in the district where an employee benefits plan is administered … on the basis of so-called 'national contacts.' "

Further, Hollander says that DiMaio and Hogan have argued that the "plaintiffs do not adequately plead that the individual defendants are 'fiduciaries,' so as to be subject to liability under ERISA for the causes of action asserted … "

She suggests that the individuals should "properly" address this argument by raising a motion to dismiss for failure to state a claim or by motioning for summary judgment.

The original complaint alleges that in November 2011, CBO vice president and CFO Lawrence Gildersleve signed a promissory note on behalf of CBO and "agreed that the company owed the fund $319,650.42 in contributions, interest and liquidated damages for the period of May 2011 through August 2011." The Fund alleges that CBO defaulted on the note "by failing to submit the settlement installments and by failing to submit remittance reports and contributions for the period of December 2011 through February 2012."


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