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July 12, 2011
JAMES BOLAND, ET AL.,PLAINTIFFS,v.FORTIS CONSTRUCTION COMPANY, LLC, DEFENDANT.
Trustees of the Bricklayers and Trowel Trades International Pension Fund (hereinafter "IPF")*fn1 filed this case against defendant Fortis Construction Company, LLC (hereinafter "Fortis"), seeking to collect employer withdrawal liability pursuant to the Multiemployer Pension Plan Amendment Act (hereinafter "MPPAA") and the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"). Defendant Fortis has moved to dismiss the Complaint on grounds that the Court lacks both subject matter and personal jurisdiction, and is the improper venue for the case. Alternatively, the defendant has requested the Court to transfer the case to the United States District Court for the Western District of Missouri. For the reasons set forth below, the defendant's motion to dismiss or for change of venue is denied.
Plaintiffs allege that at some unspecified time prior to 2008, Diaz Construction Co., Inc. (hereinafter "Diaz Construction"), a building and construction company based in Missouri, executed a collective bargaining agreement with the Bricklayers and Trowel Trades International Union (hereinafter "the Union") and its local affiliates. Compl. ¶¶ 5-6. Although the parties do not supply the agreement or state Diaz's obligation under the CBA, the plaintiffs state that pursuant to such contracts, "employers are obligated to make contributions to the Fund in order to fund the benefits provided to the participants and beneficiaries." Pls.' Opp'n Mot. Dismiss, ECF No. 6, Ex. A, David F. Stupar Decl. (hereinafter "Stupar Decl."), ¶ 2. The defendant does not appear to contest the obligations of Diaz Construction, as a signatory with the Building and Allied Craftworkers Union, Local 15, to make such payments. Def.'s Reply, ECF No. 7, Ex. A, Armando Diaz Decl. (hereinafter "Diaz Decl."), ¶¶ 5-6.
On May 12, 2008, Armando Diaz, formerly doing business as Diaz Construction, filed a Chapter 7 petition for bankruptcy protection in the United States Bankruptcy Court for the Western District of Missouri. Compl. ¶ 7. While Mr. Diaz's interests in Diaz Construction became property of the bankruptcy estate pursuant to 11 U.S.C. § 541(a)(1) -- and Diaz Construction ceased to exist following liquidation of the company's assets pursuant to Chapter 7 of the Bankruptcy Code -- plaintiffs allege that defendant Fortis is "the successor to, continuation of, alter ego of, and/or under the same management and stock control as Diaz Construction," and is therefore liable for Diaz Construction's debts and obligations. Compl. ¶¶ 4, 5, 9. To support this contention, plaintiffs allege that Fortis and Diaz Construction "shared some officers, directors, and equipment" and that Fortis "performed the same type of work in the same geographic areas as that performed by Diaz Construction." Id. ¶ 8.
While the defendant generally denies the plaintiffs' alter ego allegation, it confirms that Armando Diaz, the former sole owner of Diaz Construction, is now the "Managing Member of Fortis" and one of "five members who own an interest in Fortis." Diaz Decl., ¶¶ 1, 3, 5. According to Mr. Diaz's declaration, he operated Diaz Construction from 1991 to May 2007 and, following the bankruptcy of Diaz Construction in May 2008, began serving as a managing member of Fortis on October 30, 2009. Id. ¶¶ 1,5.
Based on the plaintiffs' determination that Fortis is Diaz Construction's alter ego, the plaintiffs concluded that the defendant withdrew from the IPF under Section 4203(b) of ERISA, 29 U.S.C. § 1383(b), which states that a building and construction employer "withdraws" from a plan if the employer ceases to have an obligation to contribute under the plan and either (1) continues to perform work in the jurisdiction of the collective bargaining agreement, or (2) resumes such work within five years after the date on which the obligation to contribute to the plan ceased. Compl. ¶¶ 10, 11. On April 6, 2010, the IPF notified the defendant that it owed $453,577.00 of "Withdrawal Liability" pursuant to Sections 4201 and 4219 of ERISA, 29 U.S.C. §§ 1381 and 1399, and demanded payment on a schedule set in accordance with Sections 4202 and 4219(b)(1) of ERISA, 29 U.S.C. §§ 1382 and 1399(b)(1). Id. ¶ 11. Under the payment schedule, the defendant was "to submit $25,892.43 to the IPF on or before June 7, 2010, $25,892.43 per month for 17 additional months, and a final payment of $1,162.83." Id. ¶ 12.
Plaintiffs allege that despite sending notice to the defendant of its withdrawal liability, the defendant failed to make payments pursuant to the schedule. Id. ¶ 13; Stupar Decl., ¶ 9. Plaintiffs then sent the defendant a letter informing the defendant that if it did not begin making interim payments within 60 days, by August 28, 2010, it would be deemed in default pursuant to 29 U.S.C. § 1399(c)(5) and internal IPF Withdrawal Liability Procedures. Compl. ¶ 13, Ex. B. In response, the defendant requested a review of the plaintiffs' Withdrawal Liability assessment and the plaintiffs responded to this request. Id. ¶ 14. According to the plaintiffs, todate the defendant has not submitted payments for withdrawal liability, nor has it initiated arbitration proceedings.*fn2 Id.
On October 15, 2010, the plaintiffs filed a Complaint alleging that because of the defendant's failure to submit withdrawal liability payments, the defendant is in default under Sections 4219(c)(5) of ERISA, 29 U.S.C. § 1399(c)(5), and the full amount of the Withdrawal Liability is now due. Id. ¶ 15. Plaintiffs further assert that the alleged default should be treated in the same manner as delinquent contributions under Sections 4219(c)(5) and 4301(b) of ERISA, 29 U.S.C. §§ 1399(c)(5) and 1451(b),*fn3 and under the IPF's internal Withdrawal Liability Procedures. Id. ¶ 16.
Plaintiffs request the Court to declare the defendant an alter ego of Diaz Construction, and award the plaintiffs $547,997.62, which represents the defendant's outstanding Withdrawal Liability of $453,577.00; interest in the amount of $3,355.22, liquidated damages of $90,715.40, litigation costs, and attorneys' fees. Compl., Prayer for Relief, ¶¶ 1-4.*fn4
On December 8, 2010, the defendant moved to dismiss the Complaint on three grounds: (1) the Court lacks subject matter jurisdiction over the plaintiffs' claims, which are predicated on the erroneous conclusion that the defendant is the alter ego of Diaz Construction; (2) the Court lacks personal jurisdiction over the defendant; and (3) the District of Columbia is the improper forum to litigate this case. In the alternative, the defendant requests the Court to transfer this case to the Western District of Missouri, which the defendant argues is the proper venue for this case. For the foregoing reasons, the Court denies the defendant's motion to dismiss or for transfer of venue. The Court addresses each of defendant's arguments seriatim below.
Federal courts are fora of limited jurisdiction, only possessing the power authorized by the Constitution and statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id. (internal citations omitted). Therefore, when a defendant brings a motion to dismiss for lack of subject matter or personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) or (2), "the [p]laintiff bears the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction." Hollingsworth v. Duff, 444 F. Supp. 2d 61, 63 (D.D.C. 2006) (citing Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002)); see also Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir. 1990); Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998)).
The Court generally "assume[s] the truth of all material factual allegations in the complaint and construe[s] the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged, and upon such facts determine jurisdictional questions." American Nat. Ins. Co. v. FDIC, No. 10-cv-5245, 2011 WL 2506043, at *1 (D.C. Cir. June 24, 2011) (internal citations and quotations omitted); see also Crane, 894 F.2d at 456 ("[F]actual discrepancies appearing in the record must be resolved in favor of the plaintiff."); DSMC, Inc. v. Convera Corp., 273 F. Supp. 2d 14, 20 (D.D.C. 2002) (the plaintiff's factual assertions in the Complaint are "presumed to be true unless directly contradicted by affidavit").*fn5 In the absence of an evidentiary hearing, the plaintiff need only make a prima facie showing that the Court has personal jurisdiction. Mwani v. Bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005).
The Court is not limited to the allegations set forth in the complaint, and "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens Pharms., Inc. v. FDA, 402 F. 3d 1249, 1253 (D.C. Cir. 2005); see also United States v. Philip Morris Inc., 116 F. Supp. 2d 116, 120 n.4 (D.D.C. 2000) (the court "may receive and weigh affidavits and other relevant matter to assist it in determining the jurisdictional facts"). When the defendant challenges the factual basis for jurisdiction, "the court may not deny the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and disputed by the defendant, but must go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss." Erby v. United States, 424 F. Supp. 2d 180, 183 (D.D.C. 2006) (internal quotations omitted) (quoting Phx. Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)). Indeed, "the court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court accept plaintiffs' legal conclusions." Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006); see also Moore v. Motz, 437 F. Supp. 2d 88, 91 (D.D.C. 2006) ("Plaintiff must allege specific facts on which personal jurisdiction can be based; [and the plaintiff] cannot rely on conclusory allegations.").
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and (2), the defendant moves to dismiss this case for lack of subject matter and personal jurisdiction. Specifically, the defendant argues that prior to reaching the plaintiffs' allegation that the defendant owes withdrawal liability under ERISA, the Court must first resolve whether the defendant is Diaz Construction's alter ego. As this determination is not a question of federal law, the defendant asserts that the Court does not have subject matter jurisdiction over the controversy, under Rule 12(b)(1). In addition, the defendant argues it does not have the requisite contacts with the District of Columbia to sustain the Court's exercise of personal jurisdiction, under Rule 12(b)(2). The Court concludes that it has subject matter jurisdiction over the plaintiffs' allegations and has personal jurisdiction over the defendant given the allegation that the defendant is the alter ego of Diaz Construction. Accordingly, the defendant's motion to dismiss the Complaint on these grounds is denied.
A.The Court Has Subject Matter Jurisdiction Over the Claim of Defendant's Alter Ego Liability for ERISA Obligations
The defendant does not dispute that the Court maintains subject matter jurisdiction over disputes arising under ERISA. To be sure, the Act explicitly grants the Court jurisdiction to hear such claims. See 29 U.S.C § 1451(c) ("The district courts of the United States shall have exclusive jurisdiction of an action under this section without regard to the amount in controversy . . . ."). The defendant seeks dismissal of this case, however, because "[t]he underlying, likely dispositive issue in the lawsuit . . . is that Fortis is the alter ego of [Diaz Construction]. The determination of whether Fortis is the alter ego of Diaz is not a subject that has been authorized by the Constitution or by statute for this Court to adjudicate." Def.'s Mem. Supp. Mot. Dismiss, ECF No. 4, at 3.
The defendant is correct that the Court does not have independent authority to adjudicate alter ego claims. Indeed, in Peacock v. Thomas, 516 U.S. 349 (1996), the Supreme Court held that the federal courts do not have subject matter jurisdiction to adjudicate claims of alter ego liability or entertain requests to pierce the corporate veil when these claims are brought independent of any other federal cause of action. Id. at 354-55 (holding that plaintiff "alleged no 'underlying' violation of any provision of ERISA or an ERISA plan" in an action to enforce a previous Court judgment imposing liability on a third-party, and thus plaintiff's "veil-piercing claim does not state a cause of action under ERISA and cannot independently support federal jurisdiction") (internal quotations and citations omitted).
When claims of alter ego liability are intertwined with a federal cause of action, however, the Court may assert subject matter jurisdiction over all allegations contained in a plaintiff's Complaint, even ones not arising under federal law, pursuant to 28 U.S.C. § 1367. Indeed, Congress has granted the Court the authority to exert supplemental subject matter jurisdiction "over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). The fundamental question in this case is whether the plaintiffs' allegation that the defendant is the alter ego of Diaz Construction is "so related to claims in [this] action . . . that they form part of the same case or controversy." It is clear to the Court that it is.
As other courts have stated, "[i]f an alter-ego claim is asserted in conjunction with the underlying federal cause of action, the latter may provide the basis for ancillary jurisdiction over the alter-ego claim, obviating Peacock concerns; [and] it is only when an alter-ego claim is asserted in a separate judgment-enforcement proceeding that Peacock requires an independent basis for federal jurisdiction." Ellis v. All Steel Constr. Inc., 389 F.3d 1031, 1033 (10th Cir. 2004) (internal citations omitted); see also Rive v. Briggs of Cancun, Inc., No. Civ.A. 99-2204, 2000 WL 98127 at *2 (E.D.La. Jan. 26, 2000) ("[I]f a district court has federal question jurisdiction of the main claim in an action, it has supplemental jurisdiction of a state-law alter-ego claim raised in the same action, if the alter-ego claim is "factually interdependent" with the main claim."); Laborers Combined Funds of W. Pa. v. Ruscitto, 848 F. Supp. 598, 601 n.4 (W.D.Pa. 1994) ("Having concluded that plaintiffs' have stated claims under ERISA, defendants' argument that this Court lacks subject matter jurisdiction is without merit . . . . Because the Court has original jurisdiction based upon a federal question and because the plaintiffs' [claims] form a part of the same case, this Court has supplemental jurisdiction over these claims."). Courts have consistently exercised subject matter jurisdiction over ERISA claims intertwined with questions regarding alter ego liability, and this Court concludes that supplemental jurisdiction, pursuant to 28 U.S.C. § 1367, is proper here. See Flynn v. R.C. Tile, 353 F.3d 953, 958 (D.C. Cir. 2004); Bd. of Trustees, Nat'l Shopmen Pension Fund v. N. Steel Corp., 657 F. Supp. 2d 155, 159 (D.D.C. 2009). Accordingly, the defendant's motion to dismiss for lack of subject matter jurisdiction is denied.
B.The Court Has Personal Jurisdiction Over the Defendant if it is the Alter Ego of Diaz Construction
The defendant asserts that it maintains no connection to the District of Columbia. It is incorporated in Missouri and headquartered in Kansas City, Missouri. Def.'s Mem. Supp. Mot. Dismiss, ECF No. 4, at 4. It has never owned property, maintained an office or conducted business in, nor had "contacts of any kind" with, the District of Columbia. Id.; Diaz Decl., ¶¶ 4,6. Moreover, the defendant asserts that "even if this Court presumes there is an applicable District of Columbia long-arm statute that would otherwise allow this Court to have statutorily granted jurisdiction, this Court does not have constitutional personal jurisdiction over [defendant] Fortis and Diaz [Construction] because neither have had any contacts in the District of Columbia." Def.'s Mem. Supp. Mot. Dismiss, ECF No. 4, at 6.
Typically, to exercise personal jurisdiction over a non-resident, the Court must examine whether jurisdiction is applicable under the relevant long-arm statute, D.C. CODE § 13-423, and must also determine whether jurisdiction satisfies the requirements of due process. See GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000). Due Process requires the plaintiff to show that the defendant has "minimum contacts" with the forum, thereby ensuring that "the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World--Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980); see also GTE New Media Servs., 199 F.3d at 1347.
Consideration of personal jurisdiction in the context of claims asserted under ERISA, however, is different. Under Section 4301(b) of ERISA, a withdrawal liability action "may be served in any district where a defendant resides, does business, or may be found." 29 U.S.C. § 1451(d) (emphasis added). Courts interpreting a functionally identical ERISA national service of process provision have held that "[f]or purposes of ERISA actions, the fact that [the defendant] has not conducted business in this district does not preclude the Court's exercise of personal jurisdiction over it." Flynn v. Ohio Bldg. Restoration, Inc., 260 F. Supp. 2d 156, 170 (D.D.C. 2003) (considering 29 U.S.C. § 1132(e)(2)).*fn6 Indeed, "[w]here Congress has authorized nationwide service of process, a federal court may exercise personal jurisdiction over any United States resident, without regard to whether its sister state court could assert jurisdiction under minimum contacts principles." Id. (quoting Combs v. Adkins & Adkins Coal Co., 597 F. Supp. 122, 125 (D.D.C. 1984)) (emphasis added).
As the defendant suggests, the concept of nationwide service of process may seem at odds with the basic due process concerns of the personal jurisdiction inquiry. However, this "issue has several times been considered by judges in this District Court; each has agreed that nationwide service suffers from no constitutional infirmity." I.A.M. Nat. Pension Fund Plan A v. Technical Tape, No. 87-cv-2451, 1988 WL 13287, at *2 (D.D.C. Feb. 4, 1988) (citing cases); see also Briggs v. Goodwin, 569 F.2d 1, 8-10 (D.C. Cir. 1977) rev'd on other grounds sub nom. Stafford v. Briggs, 444 U.S. 527 (1980)); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056-57 (2d Cir. 1993). Accordingly "when a federal court is attempting to exercise personal jurisdiction over a defendant in a suit based upon a federal statute providing for nationwide service of process, the relevant inquiry is whether the defendant has had minimum contacts with the United States." Ohio Bldg., 260 F. Supp. 2d at 171 (emphasis added) (quoting Bellaire Gen. Hosp. v. Blue Cross Blue Shield, 97 F.3d 822, 826 (5th Cir. 1996)); see also I.A.M. Nat. Pension Fund Plan A, 1988 WL 13287, at *2 ("The only contacts possibly relevant to the validity of such service are defendant's contacts with the United States." (citations omitted)). This requirement is clearly satisfied here.
The Court recognizes that the defendant is subject to this Court's jurisdiction, pursuant to the statutory provisions of ERISA, based solely on the fact that the plaintiffs claim it is the alter ego of Diaz Construction, a third-party that no longer exists. For the purposes of determining personal jurisdiction at this stage in the litigation, the Court must accept all of the plaintiffs' factual allegations not contradicted by affidavit as true. To do otherwise would "conflate jurisdiction with the merits" as the question of "[w]hether or not [the defendant] will be found liable under plaintiffs' 'alter ego' theory is a separate issue from whether there exists jurisdiction over it pursuant to ERISA's nationwide service provision." Ohio Bldg.,260 F. Supp. at 173.
Although the plaintiffs have the burden of demonstrating that jurisdiction is proper, once the plaintiffs asserted a cause of action for withdrawal liability under the MPPAA and ERISA, personal jurisdiction over the defendant became presumptively proper. See IUE AFL-CIO Pension Fund, 9 F.3d at 1056 ("Having stated a colorable claim against defendants under the MPPAA, the district court has personal jurisdiction over the defendants insofar as the MPPAA includes a provision for nationwide service of process."). That said, the Complaint and associated exhibits provide only barebones allegations and minimal evidence to substantiate the plaintiffs' determination that the defendant is the alter ego of Diaz Construction.*fn7
The defendant, however, does little to rebut the plaintiffs' allegations. While stating that the defendant is "not the successor to, continuation of, alter ego of, or under common control" of Diaz Construction, the defendant confirms that Armando Diaz, the former sole owner of Diaz Construction, is now the "Managing Member of Fortis;" that Fortis conducts business "in the states of Kansas and Missouri," the same geographical area where Diaz Construction conducted business; and that Fortis "performs multiple types of work, including . . . masonry," while Diaz Construction was also a "commercial masonry company." Diaz Decl., ¶¶ 1, 2, 5. The defendant seeks to defeat a finding that Fortis is the alter ego of Diaz Construction by stating that Armando Diaz is only one of "five members who own an interest in Fortis," and Fortis performs a broader range of construction services than Diaz Construction. Id. ¶¶ 1-3, 5. Instead of contradicting the alter ego allegation, however, the defendant's assertions raise more questions -- e.g., who are the other members with an ownership interest in the defendant and did these individuals also work at or have a management role in Diaz Construction? What is the percentage ownership that Armando Diaz continues to have in Fortis? Does the defendant, as alleged, use the same equipment that Diaz Construction once used? In its initial pleadings, the defendant has not presented the Court with sufficient evidence contradicting plaintiffs' alter ego claims for the Court to find that the exercise of personal jurisdiction is improper. Without evidence directly rebutting the plaintiffs' alter ego claim, the Court must accept the plaintiffs' allegations.*fn8
Accordingly, the defendant's motion to dismiss for lack of personal jurisdiction is denied.
The defendant also moves to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3). This argument deserves only summary treatment. Pursuant to Section 4301(d) of ERISA, actions seeking to collect withdrawal liability "may be brought in the district where the plan is administered or where a defendant resides or does business . . . ." 29 U.S.C. § 1451(d). The IPF is administered in the District of Columbia, and therefore venue is clearly proper. Accordingly, the defendant's motion to dismiss for improper venue is denied.
Alternatively, the defendant argues that if the Court does not dismiss the Complaint, the Court should transfer the case to the Western District of Missouri pursuant to 28 U.S.C. § 1404(a). Venue in this forum is proper, however, and balancing of the relevant interests demonstrates that transfer is not appropriate.
A. Standard of Review
Under the federal venue transfer statute, 28 U.S.C. § 1404, a district court may transfer a case to another district "[f]or the convenience of parties and witnesses, in the interest of justice." 28 U.S.C. § 1404(a). The Court may only transfer a case to another district "where it might have been brought." Id. This statute "vests discretion in the District Court to adjudicate motions for transfer on an 'individualized, case-by-case consideration of convenience and fairness.'" Otterv. Salazar, 718 F. Supp. 2d 62, 63-64 (D.D.C. 2010) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). Courts evaluate a series of public and private interest factors in determining whether to grant a transfer of venue. Bederson v. United States, 756 F. Supp. 2d 38, 46 (D.D.C. 2010). "The private interest factors that are considered include: (1) the plaintiff's choice of forum; (2) the defendant's choice of forum; (3) where the claim arose; (4) the convenience of the parties; (5) the convenience of the witnesses; and (6) the ease of access to thesources of proof." Id. "The public interest factors . . . include: (1) the local interest in making local decisions regarding local controversies; (2) the relative congestion of the transferee and transferor courts; and (3) the potential transferee court's familiarity with the governing law." Id. "[C]courts have imposed a heavy burden on those who seek transfer and a court will not order transfer unless the balance is strongly in favor of the defendant." United States v. Microsemi Corp., No. 1:08-cv-1311, 2009 WL 577491, at *6 (E.D. Va. Mar. 4, 2009). On a motion to transfer, "the moving party bears the burden of establishing that transfer is proper." Flynn v. Veazey Constr. Corp., 310 F. Supp. 2d 186, 193 (D.D.C. 2004) (citing Trout Unlimited v. Dep't of Agric., 944 F. Supp. 13, 16 (D.D.C. 1996)).
B. Discussion
In this case, the defendant requests the Court to transfer the case to the Western District of Missouri because the "alleged actions all took place in and around Kansas City, Missouri" and venue in this Court is "neither proper nor convenient." Def.'s Mem. Supp. Mot. Dismiss, ECF No. 4, at 9. While evaluation of a request to transfer a case involves a balancing of public and private interest factors, in the context of an ERISA action, the Court is guided primarily by considerations of public policy.
"In the ERISA context, a defendant seeking a transfer of venue has the additional burden of surmounting ERISA's special venue provision." Veazey Const. Corp., 310 F. Supp. 2d at 193 (citing 29 U.S.C. § 1132(e)(2)*fn9 ; Flynn v. Daly & Zilch Mason Contractors, Inc., No. 00-cv-3027, slip op. at 1-2 (D.D.C. June 6, 2001)). "Since Congress has enacted a special venue provision to allow multi-employer pension plans to more efficiently collect delinquent contributions, the burden on the defendants in this case is especially heavy." Int'l Bhd. of Painters and Allied Trades Int'l Bhd. of Painters and Allied Trades Union v. Best Painting and Sandblasting Co., Inc., 621 F. Supp. 906, 907 (D.D.C. 1985). The Court affords "special weight to a plaintiff's choice of forum in ERISA cases." Veazey Const. Corp., 310 F. Supp. 2d at 193 (citations omitted). Due to the special weight afforded the plaintiff's choice of forum in ERISA actions, the court "need not engage in a lengthy analysis to determine that transfer is not warranted." Id. Consequently, courts have "reject[ed] virtually every attempt to transfer ERISA actions under [28 U.S.C.] § 1404(a)." Id. (citing cases).
The defendant states that it is a "small, upstart company that is attempting to begin its business in what is one of, if not the worst construction economies in the past 25 years" and that "defense of this lawsuit is a major, unforeseen expense." Diaz Decl., ¶ 11. Although the Court recognizes the significant cost and expense of litigating this case half-way across the country, the Court must weigh the defendant's burden against the public policy rationales for allowing ERISA Funds their choice of forum. Indeed, the plaintiffs state that "[g]iven the thousands of Fund delinquencies and withdrawals and the literally of dozens of cases actually being litigated at any given time, it would be virtually impossible for [the Fund] to ensure the collection of employer delinquencies and withdrawal liability if the Fund's ERISA actions were transferred to the location of the employer." Stupar Decl., ¶ 20. Thus, as another court has noted, "[a]lthough it may be 'inconvenient to the defendant[ ] [to have to defend this action in this district], it is convenient to the plan, reducing its costs, to the benefit of all plan beneficiaries. Congress has balanced the plan's interest and permitted suit where the plan is located.'" Ohio Bldg., 260 F. Supp. 2d at 171-72 (quoting Med. Mut. of Ohio v. deSoto, 245 F.3d 561, 568 n.4 (6th Cir. 2001)) (alterations of internal quotation in original) (additional citations omitted); see also Combs v. Adkins & Adkins Coal Co., 597 F. Supp. 122, 125 (D.D.C. 1984) (rejecting a motion to transfer an ERISA withdrawal liability action, adding that "it makes good sense to hear this case where the Plans are administered"). The IPF's decision to litigate in this forum is entitled to special weight, and transfer of this case will only shift the inconvenience from one party to another. Accordingly, transfer of this case is not warranted and the defendant's motion for transfer of venue is denied.
For the foregoing reasons, the defendant's motion to dismiss or for transfer of venue is denied. An Order consistent with this Memorandum Opinion will be entered.
BERYL A. HOWELL United States District Judge
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Herbed Mushroom Muffins
Total Time
Prep 5 mins
Cook 10 mins
A quick, easy and yummy after school snack or weekend lunch. Got this recipe off a colleague many moons ago.
Ingredients Nutrition
- 4 cups mushrooms, chopped
- 3 shallots, chopped
- 1⁄4 cup water
- 1 vegetable stock cube
- 1⁄2 teaspoon hot mustard
- 2 tablespoons light sour cream
- 1 tablespoon fresh parsley, chopped
- 1 tablespoon fresh basil, chopped
- 2 English muffins
- Coat pan in cooking spray, heat and add mushrooms and shallots, cook for 2 minutes or until soft.
- Stir in water, stock and mustard - cook gently until mushrooms are soft.Drain excess liquid if necessary.
- Remove from heat stir in sour cream and herbs.
- Lightly toast muffins, heap mushroom mix onto muffins - enjoy.


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April 10, 1984
On Appeal from the United States District Court for the Eastern District of Pennsylvania.
Adams, Becker, and Van Dusen, Circuit Judges.
Opinion OF THE COURT
BECKER, Circuit Judge.
These consolidated appeals present a question of the proper allocation of pleading burdens in a chapter 13 bankruptcy proceeding. Specifically, we must determine whether, in a disupte over the avoidance of a judicial lien pursuant to 11 U.S.C. § 522(f),*fn1 the debtor on the lien credotor must file and serve a complaint (or motion) or else suffer an automatic adverse determination. The question arises as the result of an attempt by appellees, who are public welfare recipients and Chapter 13 petitioners, to avoid the judicial liens created by cognovit notes that they sigend as a pre-condition to receiving public assistance.
The bankruptcy court believed that it had authority, pursuant to 11 U.S.C. § 1322 (b)(10),*fn2 to authorize the debtor to avoid all section 522(f) liens simply by listing those liens in the Chapter 13 plan itself. We disagree and hold that where a debtor seeks to avoid a judicial lien pursuant to 11 U.S.C. § 522(f), the adversary proceedings rules adopted by the Bankruptcy Code apply, and that the debtor thus bears the burden of filing a complaint with the bankruptcy court and serving a copy of it on each creditor whose lien the debtor seeks to avoid.This procedure was not followed in this case. We therefore reverse and remand for further proceedings.
These consolidated appeals by DPW are from decisions by the bankruptcy court, affirmed by the district court, approving the Chapter 13 plans of debtors Michael and Eileen McKay (No. 83-1184) and Arthur Graham (No. 83-1209). In both cases, the debtors filed a petition and a plan under Chapter 13 of the Bankruptcy Code, 11 U.S.C. § 1301 et seq., containing a provision stating: "Debtor avoids liens avoidable under 11 U.S.C. 522(f)." And in both cases, the bankruptcy court sent a computerized notice of the bankruptcy proceedings, prepared by appellees' counsel, to all the creditors listed in the debtor's petition, including the appellant, Commonwealth of Pennsylvania, Department of Public Welfare (DPW).The notice contained the name and address of the debtor and his attorney, the amount of secured and unsecured debts, the time and place of the creditors' hearing and the plan confirmation hearing, the amount of proposed monthly payments to the trustee, and the following statement:
A debtor may provide in a plan for the avoidance of certain liens under Sec. 522-F which impair an exemption to which the debtor otherwise might have been entitled if the lien is a judicial lien or is a nonpossessory, nonpurchase money security interest in household furnishings and other types of personal property.Any objections to the avoiding of the aforementioned liens, to confirmation of debtor's plan or debtor's claim of exempt property shall be made pursuant to Rule 914 of the rules of bankruptcy procedure. All objections shall be filed with the Clerk, U.S. Bankruptcy Court, at the address shown below no later than 10 days before the confirmation hearing, and such objections shall be served on both the debtor and debtor's attorney whose names and addresses appear on this notice not later than 5 days before the confirmation hearing. The debtor's plan provides for the avoidance of liens under Sec. 522-F.
The notice, which DPW received, did not state that DPW held a lien against the debtor's property, nor did it state explicitly that the debtor sought to avoid DPW's lien.More importantly for purposes of this appeal, the notice stated that all avoidable section 522(f) liens will be avoided unless the holder of the lien files an objection pursuant to Fed. R. Bankr. P. 914 prior to approval of the Chapter 13 plan by the bankruptcy court. The notice thus burdens the creditor with the duty of pleading that its specific lien should not be avoided; under these terms of the notice, if the creditor does not file such an objection, his lien will be avoided.
DPW filed an objection to the debtor's form notice, makning a three-step objection to its validity. First, it argued that avoidance of a lien pursuant to section 522(f) is a proceeding to "determine the validity, priority, or estent of a lien or other interest in property." Second, it argued that under Fed. R. Bankr. P. 701(2), this fact renders section 522(f) lien avoidance subject to the adversary proceedings rules for bankruptcy cases (i.e., Fed. R. Bankr, P. 701-782). And third, it argued that the adversary proceedings rules require that the debtor file a complaint with the bankruptcy court and serve that complaint on every creditor whose lien the debtor seeks to avoid.*fn3 Thus, according to the DPW, the law places the burden of pleading on the debtor.*fn4
In both cases, the bankruptcy court rejected the DPW's argument and concluded that 11 U.S.C. § 1322(b)(10) authorized the debtor to provide for avoidance of judicial liens in the Chapter 13 plan itself. Consequently, the court concluded that the burden was on DPW under Fed. R. Bankr. P. 914 to file an objection to the debtor's Chapter 13 plan. Since DPW never filed such an objection, the bankruptcy court approved the plan, and thereby avoided DPW's lien.*fn5 Two district judges of the Eastern District of Pennsylvania affirmed without opinion.
The answer to the question of whether the bankruptcy and district courts erred in placing the burden of pleading on the DPW turns on the inter-relationahip among three sections of the Bankruptcy Code: section 522(f) authorizing certain forms of lien avoidance, section 405(d) setting forth the procedural rules applicable in bankruptcy cases, and section 1322(b)(10) setting forth the permissible scope of reorganization plans under chapter 13 of the Bankruptcy Code.
Section 522(f) of the Bankruptcy Code provides that the debtor may "avoid" a judicial lien to the extent that such lien "impairs an exemption to which the debtor would have been entitled under subsection (b)."*fn6 Section 522(f) does not, however, set out the procedure for avoiding such liens. Section 405(d) of the Bankruptcy Reform Act of 1978 is the general statutory provision setting out what procedural rules control in proceedings conducted pursuant to the code. Section 405(d) provides that the "rules prescribed under section 2075 of Title 28 of the United States Code and in effect on September 30, 1979, [i.e., the Federal Rules of Bankruptcy Procedure] shall apply to cases" under the code to the extent those rules are "not inconsistent with . . . this Act."*fn7
One of the bankruptcy rules in effect on September 30, 1979, and still in effect at the time of this litigation, is Rule 701.*fn8 It stated that any proceeding to "determine the validity, priority, or extent of a lien" is subject to the bankruptcy court's adversary proceedings rules, Fed. R. Bankr. P. 701-782.*fn9 Since section 522(f) plainly involves "the validity, priority, or extent of a lien," any procedure conducted pursuant to section 522(f) would thus appear to be subject to the bankruptcy court's adversary proceedings rules so long as those rules are "not inconsistent" with the code.
The bankruptcy court and district courts believed that 11 U.S.C. § 1322(b)(10), which provides that a chapter 13 plan may "include any other appropriate provision not inconsistent with this title" authorized avoidance of a judicial lien without an adversary proceeding, and that, therefore, Rule 701 was inconsistent with the Bankruptcy Code. We disagree. Congress did not intend in section 1322(b)(10) to give the bankruptcy court carte blanche to establish procedures it deems fair without regard to other provisions of the Code.Although it is true that section 405(d) of the Bankruptcy Code does permit its general directive to be overridden by specific laws to the contrary, we do not believe that a substantive catch-all provision such as section 1322(b)(10) contains the requisite specificity or force to suggest that Congress intended it to override the procedural rules adopted by section 405(d).
The debtors' remaining argument is that inclusion of a provision in a Chapter 13 plan providing for the avoidance of section 522(f) liens is not a "proceeding" and therefore the adversary proceedings rules by their terms do not apply. Again, we disagree. The phrase "any proceeding instituted by a party before a bankruptcy judge" in Fed. R. Bankr. P. 701, is not intended as a limit on application of the adversary proceedings rules. A quick review of the language of rule 701 and its accompanying advisory note plainly indicates that the drafter's intent was to require use of the adversary proceedings rules whenever certain forms of property (e.g., judicial liens) were affected in certain ways (e.g., judicial liens) were affected in certain ways (e.g., by avoidance pursuant to section 522(f)). We conclude that the drafters of the rules intended all forms of lien avoidance pursuant to section 522(f) to be subject to the adversary proceeding rules.
In sum, we hold that in a proceeding brought under the former bankruptcy rules to avoid a judicial lien (pursuant to 11 U.S.C. § 522(f)) created by a cognovit note signed by a Chapter 13 petitioner as a pre-condition to receiving public assistance, the adversary rules, Fed. R. Bankr. P. 701-782, shall apply, and, therefore, the debtor has the burden of filing a complaint seeking lien avoidance with the bankruptcy court and serving a copy of it on each creditor whose lien the debtor seeks to avoid.*fn10 The bankruptcy court therefore erred in authorizing the inclusion of a provision avoiding section 522(f) liens in the debtors' Chapter 13 plans. We will therefore reverse and remand for further proceedings consistent with this opinion.*fn11
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Raiders Nightby Robert Lipsyte, Michael Miletic
At Nearmont High School, football stars are treated like royalty, and Matt Rydek has just ascended to the throne. As co-captain of the Raiders, he's got it all, or so it seems: hot girls, all the right friends, plenty of juice to make him strong, and a winning team poised to go all the way. If he can keep his eye on the ball now, his future will be set, with a full
At Nearmont High School, football stars are treated like royalty, and Matt Rydek has just ascended to the throne. As co-captain of the Raiders, he's got it all, or so it seems: hot girls, all the right friends, plenty of juice to make him strong, and a winning team poised to go all the way. If he can keep his eye on the ball now, his future will be set, with a full ride to a Division One school, a shot at the pros, and-most important-his dad off his back. But when the team turns on one of its own, should Matt play by Raiders rules, or should he go long alone?
Robert Lipsyte, an award-winning journalist, in consultation with Dr. Michael J. Miletic, a leading sports psychiatrist, takes a hard-hitting look at the world of competitive high school sports in a novel straight from today's headlines.
Editorial Reviews
Product Details
- 9780060599461
- Publisher:
- HarperCollins Publishers
- Publication date:
- 08/01/2006
- Pages:
- 240
- Product dimensions:
- 5.00(w) x 7.12(h) x 0.91(d)
- Age Range:
- 12 - 17 Years
Read an Excerpt
Raiders Night
By Robert Lipsyte
Copyright © 2006
Robert Lipsyte
All right reserved.
Chapter One
The Back Pack hit the gym in the early afternoon, Matt in the
lead, before the yuppies marched in from work, while the young
moms were rushing out to pick up their kids from day camp.
Matt liked the way their hot eyes roamed over him, wondered if
they knew he was still in high school, wondered if they cared.
He felt big and hard. Excited. Was it the moms or what was
waiting for him upstairs, the iron weights that would make him
even bigger, harder. And the juice.
Brody poked him from behind with the football he always
carried. "Check the headlights on the one in blue."
"Someday I'm gonna stick that ball up your ass."
"Ooooh, don't tease me, big boy."
Matt led them through the downstairs crowd of designer spandex
and pastel sweats, cuties perched on shiny machines jiggling
away to love songs as they pretended to work out. What did
they know about working out? He liked the sense of leaving
their soft world behind as he led the Back Pack up the metal
steps into the stink and clang of the second floor, the real
workout room.
He was glad they had beaten the linemen to the gym today. Give
us a chance to get our session going without Ramp's crap.
The ironheads were there; they were always there, older white
guys screaming each other into one more pec-busting rep. They
wore tank topsand bandannas that looked like they were soaked
in diesel fuel. One of them called out a singsong,
half-mocking "Rai-derz."
Tyrell raised two fists. "Raiders rule, niggaz!"
The ironheads liked that and banged metal plates. Some of them
had gone to Nearmont High and played ball.
"Matt?" The gym owner, Monty, came out of his office and
beckoned him over. "New shipment's in."
Matt nodded and felt the excitement rise. Perfect timing. Load
up just before camp so the juice kicks in during the
two-a-days when we really need it. He flashed the Back Pack a
thumbs-up. Hope they all brought their wallets.
They dressed quickly. They were jittery, psyched for the last
heavy workout before camp. Tyrell, as usual, complained about
the music on the upstairs speakers, a pounding mix of disco
and heavy metal. The ironheads controlled those CDs. For now.
See what happens if we win Conference this year.
Matt caught Pete sneaking peeks at himself in the mirror. Pete
was more self-conscious than the rest of them about the
pimples on his shoulders. Backne they called it. From the
steroids. Price you pay. Pete's girlfriend, Lisa, wasn't so
sure it was worth the price. She'd said as much, and Pete
listened to her. Girls hear about the side effects, but how
could they know the feeling of watching a muscle grow bigger
and harder? Pete flexed his biceps when he thought no one was
looking, as if to remind himself that Lisa didn't know
Matt said, "Quads and glutes win games." He wondered if he was
taking this captain thing too seriously.
"Tyrell says bicep curls win hot girls," said Tyrell. He
mimicked Pete's flex.
Pete, embarrassed, snapped his shirt at Tyrell, who laughed
and danced just out of range. They loved to watch Tyrell move.
He had radar. He glided like a phantom. He was the best
running back in the conference. If we stay healthy and tight,
Matt thought, this could be our season. Maybe State. Senior
year, what a way to go.
Out on the mats, stretching, Matt could tell Brody's mind was
heading to the same place.
"We got a shot." Brody's big freckly face had that dreamy
look. Probably imagining himself winning the state title. With
a quarterback sneak. Not a forty-yard bomb to me or a handoff
to Tyrell, but a heroic scramble out of a collapsing pocket
and a desperate lunge over the goal line. Behind his back,
some of the guys called him All-Brody. Dad thought he didn't
throw to Matt enough. But Brody was all right. Best friend on
the team.
"One day at a time," said Matt.
"You're, like, channeling Coach Mac," said Brody.
"You ready to put the bar where your mouth is?" Matt held up
the clipboard with their workout schedule.
"See what I mean?"
They started with squats, lunges, and power cleans to build up
their legs and lower backs for the explosive starts off the
line of scrimmage. These were the most intense exercises in
the daily program the coaches had laid out in the spring. Matt
had come to realize that if they left those exercises to the
end of the session, they would slack off, especially Pete and
Brody. They preferred to work harder on the lat pull downs,
the curls and flys to build up their upper bodies for the
beach. But they listened to Matt. He was their leader. Tyrell
had named them the Back Pack, the four starting backfield
seniors. Brody, Pete, and Matt had played together since
PeeWee. Tyrell had joined them as a sophomore after he came
out from New York, staying at his aunt's house during the week
so he could go to Nearmont High.
The linemen stomped in, Ramp bellowing, "Yo, Rydek, your girls
done yet?"
Before Matt could respond, Tyrell shouted, "Where you been?
Stop off for lunch at the hog farm?"
Ramp cursed, raised a finger, and led the linemen into the
locker room.
Matt waited until they were out of earshot. "Chill."
"Nobody cool says chill no more."
"Our last season, last chance to win Conference." He glared at
Tyrell until he nodded and started pulling dumbbells off the
rack. "Let's be a team."
"You always right, Cap'n Matt, sir."
Matt and Brody moved to the benches. It took a few reps to
clear his head, but once Matt felt the blood pumping again,
all the good feelings came back. He concentrated on
visualizing his muscles swell and harden as he lay on the ...
Excerpted from Raiders Night
by Robert Lipsyte
Copyright © 2006 by Robert Lipsyte .
Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Meet the Author
Robert Lipsyte was an award-winning sportswriter for the New York Times and the Emmy-winning host of the nightly public affairs show The Eleventh Hour. He is the author of twelve acclaimed novels for young adults and is the recipient of the Margaret A. Edwards Award honoring his lifetime contribution in that genre. He lives in Manhattan and on Shelter Island, New York, with his wife, Lois, and his dog, Milo.
Customer Reviews
Average Review:
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Lipsyte takes a very serious subject and creates a dramatic story that will stay with you for a long time. The characters struggle to find themselves in a HS setting surrounded by peer pressure, friendship, and the power of choices. Athletes, especially, will relate to the character struggles, but anyone could take something away from this story. Raiders Night is an important book to contemplate while trying to decide if you have the courage to do the right thing no matter the cost to yourself, your friends, and your team.
Lipsyte did a great job on this book and its a great read. Athletes can easily relate to this book. The author did well with the conflicts and that is what can keep you so tied in with this book. You can definitely tell that a good lesson you learn from the book is making good decisions in high pressure situations.
This book was a very well written book and this book caught my attention when I heard it was about a kid in high school that is on a football team and he starts doing some illegal stuff. The reason this is interesting because it kinda tells u what happens in some high schools.
He should write anioter book to this i want to find out wat hapens to the kid who shoots himse this is so left as a clif hanger
Raiders Night The book Raiders Night is an intense, thrilling novel that grabs the reader's attention and keeps it. Matt the main character is faced with life changing decisions that only he can make. He must choose between his dad's dream or his dream. This is getting to him and he is not sure which one he needs to choose. This is a life changing decision that he's scare to make because of what his dad might do to him. Only Matt can make this decision what will he choose?
Raiders Night, by Robert Lipsyte tells the story of an athletic teenage boy. He accurately describes the very difficult issues from steroid usage to relationship issues that face every teenage boy in this day and age. The main character, Matt Rydek, is the captain of the Nearmont Raiders and also a member of the "Back Pack" which is a group of football players who work out together and also shoot steroids together. Matt has a chance to play at the next level and his dad will not let him jeopardize that, which leads Matt to question who exactly is he playing for? His Raiders are the complete center of attention in Nearmont with the thought of a state championship and nothing can slow them down, not even a suicide attempt. This novel was an extremely easy read in which I was able to read in a very short amount of time. This book would be very interesting for a teenage guy since he would be able to connect more with the text than a girl possibly could. Another thing I liked about this book is how the author didn't leave anything out or try to butter things up. The author told his audience exactly what issues teenagers face and what methods they use to either push through these problems or cope with them in the use of drugs or alcohol. One thing that completely frustrated me was the ending to this book. The plot steadily became more and more interesting and all of a sudden the book is over. I think this book could have gone for 50-60 more pages to completely solve all the problems in this book, but instead the book just suddenly came to a screeching stop.
This is an ok book. Its not very exciting and even sometimes i got confused what is was talking about. There are a lot of cursing in it so not recomended for younger children. I would rate it a 2.5 out of 5
This book is very dumb and had no point whatsoever for it. I advise no one to read this really dumb book. It has nasty parts in it like shoving a bat up this guys butt and then the kid ending up killing himself. No one under the age of 100 should read this unless u are messed up in the head and have a sick mind a.k.a. domesticated. Do not read this dumb book.


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German Tour: Parliament Quarter & Reichstag glass dome
Experience a tour of the Berlin Parliament Quarter and learn more about the rich past of the capital. Enjoy the view of the city on a visit to the…
Experience a tour of the Berlin Parliament Quarter and learn more about the rich past of the capital. Enjoy the view of the city on a visit to the…
Drive through Berlin in the official car of the DDR! Squeeze yourself behind the wheel of a Trabant of your choice and putter around the capital. See…
Gain a comprehensive insight into the international world of shadows at the Spy Museum Berlin. The museum at Potsdamer Platz is open daily from 10:00…
Enjoy an exciting journey through the history of Berlin by bike and discover the most famous sights in the city. On this 3.5-hour bike tour you ride…
Guests can explore the winter of Berlin's most famous sights in a fun-filled tour by Segway. Watch the famous border crossing of the Allies and takes…
Visit the Old National Gallery, which is part of the UNESCO World Heritage Museum Island. See works of Classicism, Romanticism, Biedermeier,…
BerlinSee all 506 tickets & tours
For 28 years the Berlin Wall symbolized an ideological stalemate and its fall was swiftly followed by that of the Soviet Union. It's shaped the contemporary life of a city and the attitudes of its residents, so here are some things to know before your trip.
It was built in 1961 to cut off access to West Berlin
Berlin was the main route for the 3.5 million East Germans emigrating to the West prior to 1961. The 155km wall was intended to stifle a hemorrhaging workforce!
The wall couldn't stop emigration...
An estimated 100,000 still escaped East Germany after the wall went up. In the first two years, 1,300 of them were border guards!
...But it could slow it down!
Crossing wasn't easy, of course. At least 98 people were killed as a result of trying to sneak through, although some counts put the death toll well above 200!
There were plenty of imaginative escapes
East Berliners devised many daring ways of entering the West, from tightropes, zip-lines, and hot air balloons to crashing through in a speeding train!
It was torn down in 1989
Misinformation about relaxed regulations spread across East German news, driving citizens to gather at the wall hoping to cross. Outnumbered, the border guards eventually gave way!
Most of the wall has been demolished, but tourists can still visit preserved segments, such as the Eastside Gallery (so-called for its large graffiti murals running along the Spree River's east bank between Kreuzberg and Friedrichshain). A notable section is also visible at the Berlin Wall Memorial on Bernauer Strasse. City tours should cover most of the sites, including Checkpoint Charlie – the famous American checkpoint on Friedrichstrasse.
Berlin is a true summer city and there are few better ways to spend a sun-soaked visit than to tour its sights by foot or by bike! If your visit has been cursed by cold or rainy weather, however, visit the segment at the Berlin Wall Memorial. It can be viewed from the top floor of its Visitors' Center, which also provides fascinating insights into life behind the wall.
Really easy to use, easy to pick up from airport, gave us the freedom for 72 hours to travel freely in Berlin on all public transport. Would always buy this again
Georgia was a really interesting guide. She really seems to enjoy what she does and she was also interacting with us at all times. She showed us most of the importand things in Berlin through jokes and references to things that everybody knows eg movies. We really enjoyed it.
Easy to find the pick up point. Knowledgeable friendly guide - gave a sensitive history of the city. Great activity for your first day to see all the main sights you can then choose which ones to go back and see in detail. We covered a great distance that I wouldn't want to have walked and would have missed seeing so much if we'd travelled underground.
We picked up our Berlin Welcombe Cards at the airport, we were then able to reach our hotel easily. With the Berlin map and train route map it was easy to pick out route we needed. Just match up the name of the station with that on the notice boards no need to be fluent in German.
Really pleased I began my trip with this tour. Our guide was excellent- really knowledgeable and delivered his comments with humour and great pace. Thoroughly recommend the tour.


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News and notes on the restaurant scene from dining critic Carol Deptolla
McCormick & Schmick's closes Mayfair Mall restaurant after lease expires
The signs are already removed from the McCormick & Schmick's seafood chain at Mayfair Mall in Wauwatosa. The restaurant, in a freestanding building outside Macy's at the mall's northern end, closed this week.
According to a statement from a spokeswoman, owner Landry's Inc. closed the restaurant when its lease expired. She wouldn't say why the restaurant did not to renew its lease. »Read Full Blog Post
A look at the French restaurant Cafe Grace, opening Tuesday in Wauwatosa
Cafe Grace, the Bartolotta-run French restaurant in Wauwatosa's Mayfair Collection, opens to the public Tuesday with a casual atmosphere, an array of rotisserie and charcoal-fired meats, and small bites and wines to appeal to customers who want to pause only briefly.
It's the last of four restaurants opened by the Bartolotta group at the shopping center, 11200 W. Burleigh St.; the restaurants are owned by Phoenix, the shopping center's developer.
The group has operated the fine-dining Lake Park Bistro on Milwaukee's east side for more than 20 years; the group's corporate chef, Adam Siegel, won a James Beard Foundation award for best chef Midwest in 2008 for his work at Lake Park. »Read Full Blog Post
Taqueria El Jefe to open Tuesday, Cafe Grace expected July 19 in Wauwatosa
Opening dates are set for the two remaining Bartolotta-operated restaurants at the Mayfair Collection in Wauwatosa: Taqueria El Jefe will open to the public Tuesday, and casual French restaurant Cafe Grace is due July 19.
Bartolotta Restaurants in May opened ABV Social, a sports bar serving craft beer, and last year opened Osgood's, a fast-casual burger and custard restaurant, at the new mixed-use development at 11200 W. Burleigh St. »Read Full Blog Post
Tosa development that includes Stone Creek Cafe is stalled; Screaming Tuna no longer part of project
The project bringing a second Stone Creek cafe to Wauwatosa is in limbo; meanwhile, the Screaming Tuna Asian-fusion restaurant proposed for that location has pulled out of the development.
Jason Luther, president of the Luther Group of Elm Grove, said he still hopes to develop the building at 7954 Harwood Ave. A design cost estimate was more than expected, he said, so the project went "back to the drawing board."
Screaming Tuna, whose original location is at 106 W. Seeboth St., won Wauwatosa planners' backing for the site early this year but ultimately decided against opening the restaurant. "There were a lot of factors we had to weigh in the difficult decision not tomove forward with that particular location," general manager Cristian Vega said. He did not elaborate. »Read Full Blog Post
Le Reve in Wauwatosa has a new chef de cuisine
Courtney Wilkerson, the sous chef for the past year at Le Reve Patisserie & Cafe in Wauwatosa, has been promoted to chef de cuisine.
Wilkerson, who joined Le Reve in 2013 and became sous chef in 2015, is updating the French restaurant's lunch and dinner menus for spring. »Read Full Blog Post
Tiki drinks on the way; WauwaTiki opens to public Monday
The prospect of tiki drinks on North Ave. in Wauwatosa, long delayed, is coming to pass: WauwaTiki is opening to the public on Monday.
The tiki bar and restaurant, at 6502 W. North Ave., has been turned from an Arts-and-Crafts-style office space into tropical setting, with the help of Flux Design.
Installing a kitchen and extensive plumbing were part of the construction delays, said Jason Growel, one of four WauwaTiki partners and the owner of the Eastsider in Milwaukee. The partners also encountered an initial delay in the purchase of the building. WauwaTiki originally was expected to open in June 2015. »Read Full Blog Post
A preview of Cafe Grace, Taqueria El Jefe and ABV Social, the new Bartolotta restaurants due in Tosa
It took almost a year to name the three new Bartolotta-operated restaurants that are opening in summer at Wauwatosa's Mayfair Collection.
"Names are critical to the success and imaging of a restaurant," said Joe Bartolotta, co-owner of the restaurant group, so the group and the restaurants' owner, Phoenix Development, took their time. »Read Full Blog Post
Benji's Deli abandons its Tosa plans
The Benji's Deli that was in the works for east Tosa since summer isn't happening after all.
"The scope of the project just got very bloated," said Mike Price, who owns Benji's Deli in Shorewood and Fox Point. "The costs were just immense to retrofit" the old building at 6606 W. North Ave. »Read Full Blog Post
Zak's Cafe, Highlands Cafe ending dinner, focusing on breakfast and lunch
Two more restaurants are saying goodbye to dinner — at least for now — to focus on breakfast, brunch and lunch: Highlands Cafe in Wauwatosa and Zak's Cafe in Walker's Point.
Recently, Sheridan's in Cudahy halted dinner so that it could open seven days for daytime service; all three restaurants' owners said the change allows them to focus on popular breakfasts and lunches while freeing the restaurant at night for parties. »Read Full Blog Post
Drawn by business boom in Tosa, Stone Creek plans 2nd cafe there
In Wauwatosa, Stone Creek Coffee Roasters already has a cafe at Glenview Ave. and Blue Mound Road; by fall, it plans to have a second Tosa cafe a scant mile away, at Glenview and Harwood avenues.
Drew Pond, Stone Creek's director of teams and development, said the roaster initially questioned whether it should open a cafe in a building being redeveloped at 7954 Harwood Ave. by the Luther Group of Elm Grove. »Read Full Blog Post
Le Reve owners to buy building next door for expansion
The owners of Le Reve Patisserie & Cafe are buying the building next door in Wauwatosa's village business district with thoughts of growth — although not imminent.
"It's a good opportunity for us to expand, and we've been out of room here for a while," said Andrew Schneider, one of the owners of Le Reve, 7610 Harwood Ave.
Quatre Chiens, the company operating Le Reve, is buying the Cream City brick building (shown above) at 7600-7606 Harwood Ave., owned by Dennis Webb's Harwood LLC, according to a document filed with the city. »Read Full Blog Post
Osgood's, a fast-casual restaurant operated by the Bartolotta group, opens Tuesday in Tosa
Sandwich shop Osgood's, the first of four restaurants to be operated by Bartolotta Restaurants at the Mayfair Collection in Wauwatosa, opens to the public today.
It's at 11530 W. Burleigh Road. The first phase of the Mayfair Collection, a retail center with a number of off-price divisions of retailers such as Nordstrom Rack, opened in 2014. Osgood's is in the second phase of the development, which will be anchored by Whole Foods Market and Homewood Suites hotel.
The counter-service restaurant with a double drive-through combines elements of a couple of other Bartolotta fast-casual restaurants — Miss Beverly's BBQ and Northpoint Custard — and adds Chicago-style hot dogs and Italian beef and other sandwiches to the mix. »Read Full Blog Post
Irie Zulu sets its menu and a new opening date of Nov. 6 in Tosa
Irie Zulu in Wauwatosa, the new African and Jamaican restaurant and shop, will have an open house on Saturday and will open for lunch and dinner beginning Friday.
On Saturday, the ribbon-cutting will start at 2:30 p.m. at 7237 W. North Ave. and the open house will be from 3 to 5, when Irie Zulu will have samples of foods such as plantain chips, Jamaican jerk chicken bites and hibiscus and ginger juice, and Halloween treats for children; a cash bar will be open. »Read Full Blog Post
Irie Zulu in Tosa sets November opening, with Oct. 31 as its open house
Updated Oct. 30 to reflect new opening date
Irie Zulu, the new African and Jamaican restaurant from Afro Fusion Cuisine founder Yollande Deacon, will begin serving lunch and dinner to the public at 11 a.m. Nov. 6 at 7237 W. North Ave. in Wauwatosa. »Read Full Blog Post
Rocket Baby Bakery's new chef of savory items will expand the cafe menu
A new chef overseeing the cafe menu at Rocket Baby Bakery in Wauwatosa will expand the offerings while setting her sights on opening her own restaurant.
Andrea Murdoch, who joined the bakery about a month ago, said she will add soups and salads to the cafe menu and make changes to the sandwich lineup around the end of October. »Read Full Blog Post
In Wauwatosa, Thai-namite and Fish Cheeks could open by year's end
Fish Cheeks sushi and seafood restaurant and Thai-namite, serving Thai dishes and sushi, could open around the end of the year in Wauwatosa, now that the city's Common Council has given the two restaurants the go-ahead.
The council on Tuesday approved permits for the two to operate. »Read Full Blog Post
WauwaTiki, the tiki bar planned in Tosa, is projecting a November opening
The owners of the tiki bar planned for 6502 W. North Ave. in Wauwatosa expect to close on the sale of the building this month and hope to open WauwaTiki in November.
Jason Growel, owner of the Eastsider bar in Milwaukee and co-owner of WauwaTiki, said the closing of the building is set for Sept. 16. He and business partner Peter Panagos, owner of the Hotch in Milwaukee, had originally hoped to open their new place this summer.
Wauwatosa's Community Development Authority this week awarded the owners a $100,000 loan, forgiveable if they meet their projections of hiring the equivalent of at least 14 full-time workers and if they stay in business at least five years.
Plans call for the tiki bar and restaurant to serve menu items with Hawaiian, Caribbean and African flavors for lunch and dinner. Because the neighborhood is made up of many young families, the partners have said, they plan to have a children's menu and nonalcoholic drinks as well.
Two new-this-summer patios, on the west side and in Tosa
Patios are made for these perfect summer days; here are a couple that were made just this summer:
The new patio at Il Mito in Wauwatosa (above), 6913 W. North Ave., is behind the restaurant. Because the patio was in the planning stages for a while, the plantings already are mature and lush. Heating elements for cooler nights are atop short stone pillars on the patio. »Read Full Blog Post
Simmer Cafe opening a kiosk at Mayfair in the fall
Simmer, the soup, salad and panini food truck and downtown cafe, next will open a kiosk in the food court at Mayfair Mall in Wauwatosa, co-owner Steve Perlstein announced Monday.
It's expected to open in early October, he said. »Read Full Blog Post
At Lucky Joe's Alchemy & Eatery in Tosa, a bite to go with drinks
Lucky Joe's Alchemy & Eatery, a speak-easy serving small plates and classic, original and tiki cocktails, is set to debut Thursday in Wauwatosa's village district.
Opening at 1427 Underwood Ave. in the former One-Way Cafe space, it's a sister bar to Lucky Joe's Tiki Lounge in Walker's Point. »Read Full Blog Post