United States District Court, S.D. Ohio, Western Division
BOARD OF TRUSTEES OF THE PLUMBERS, PIPEFITTERS & MECHANICAL EQUIPMENT SERVICE, LOCAL UNION NO. 392 PENSION FUND, et al. Plaintiffs,
SUSAN L. HUMBERT D/B/A GENESIS MECHANICAL, et al., Defendants.
OPINION AND ORDER
Michael R. Barrett, Judge.
matter is before the Court on: 1) Defendants Steve Reece and
Genesis Mechanical Services, Inc.'s Motion for
Reconsideration and/or Clarification (Doc. 62); 2) Defendants
Steven Humbert and Susan Humbert, D/B/A Genesis
Mechanical's Motion for Reconsideration and/or
Clarification (Doc. 64); and 3) Plaintiffs' Motion to
Compel Defendants' Compliance with Opinion and Order
(Doc. 71). These motions are now fully briefed and ripe for
review. The Court held a hearing on August 23, 2016.
parties filed cross-motions for summary judgment. Upon
review, the undersigned denied Defendants' respective
motions for summary judgment (Docs. 42 and 44) and granted
Plaintiffs' motion for summary judgment (Doc. 45). (Doc.
facts of this case were recited at length in the Opinion and
Order and are incorporated here. Briefly, Plaintiffs Board of
Trustees of the Plumbers, Pipe Fitters & Mechanical
Equipment Service, Local Union No. 392, Pension Fund, et
al. operate various funds for Local Union No. 392, which
serve plumbers, pipefitters, and mechanical equipment
contractors. Steve Humbert began a pipefitting and welding
business operating under the name “Genesis
Mechanical” in 2004. Genesis Mechanical had seven
customers. (Doc. 46, PageID 1068). The record includes a
signature page for a collective bargaining agreement with
Local Union No. 392 with a signature of the name Susan L.
Humbert dated October 1, 2004. (Doc. 46, PageID 710). Her
name is also listed as the owner of Genesis Mechanical on a
Contractor Sign-Up Sheet. (Doc. 51-1, PageID 1246).
Defendants deny that Susan Humbert had authority to sign on
behalf of Genesis Mechanical, and deny she signed anything on
behalf of Genesis Mechanical. (Id. at PageID 419).
Moreover, Defendants deny Susan Humbert had anything to do
with Genesis Mechanical. (Id.). Despite this
contention, W-2's from 2009 show that Susan Humbert was
paid for work in some capacity performed on behalf of Genesis
2008, Steve Reece approached Steve Humbert to ask if he could
use part of the Genesis Mechanical name for an operation he
intended to start. (Doc. 41-1, PageID 352; Doc 41-3, PageID
426). With Humbert's permission, Reece began operating
Genesis Mechanical Services (“GMS”).
(Id.). Reece's business focused on commercial
and residential heating and air conditioning. (Doc. 41-1,
PageID 355). Reece had over 100 customers - a list which
included some of Genesis Mechanical's customers. (Doc.
41-1, PageID 362, 373; Doc. 46, PageID 1070-77).
companies used CBS to handle administrative and payroll
functions. (Doc. 41-1, PageID 354). Both companies used the
EIN of CBS for its W-2's. (Doc. 46, PageID 1008-56;
see also Doc. 41-4, PageID 455). Moreover, according
to Reece, he would sometimes subcontract out work to Genesis
Mechanical, despite the lack of a subcontractor agreement.
(Doc. 41-1, PageID 358, 371).
were two primary issues before the Court on summary judgment:
1) whether Reece/GMS/Genesis Mechanical, Inc. is
independently bound by and in breach of the CBA as a result
of their conduct; and 2) whether Reece/GMS/Genesis
Mechanical, Inc. is bound by the CBA because they are alter
egos of the Humberts/Genesis Mechanical who are bound by the
CBA. The undersigned concluded that Reece/GMS was not,
standing alone, bound by the CBA, but nevertheless granted
summary judgment in favor of the Trust Funds upon a finding
that the Humberts/Genesis Mechanical are bound by the CBA and
Reece/GMS is likewise bound by the CBA as the alter ego of
the Humberts/Genesis Mechanical. (Doc. 61, PageID 1469).
filed a motion for reconsideration (Doc. 62), as did the
Humberts/Genesis Mechanical (Doc. 64). For ease of
discussion, the motions are addressed out of order.
a motion for reconsideration is not mentioned in the Federal
Rules of Civil Procedure, such motions are treated as a
motion to amend a judgment under Rule 59(e). McDowell v.
Dynamics Corp. of America, 931 F.2d 380, 382 (6th
Cir.1991); Shivers v. Grubbs, 747 F.Supp. 434, 436
(S.D. Ohio 1990). The grant or denial of a Rule 59(e) motion
is within the informed discretion of the district court, and
is reversible only for abuse of discretion. Huff v.
Metropolitan Life Ins. Co., 675 F.2d 119, 122 (6th Cir.
are three grounds for amending a judgment: (1) to accommodate
an intervening change in controlling law; (2) to account for
new evidence not available at that time the dispositive
motion was decided; or (3) to correct a clear error of law or
to prevent manifest injustice. GenCorp., Inc. v. Am.
Int'l Underwriters, 178 F.3d 804, 834 (6th Cir.
1999); Berridge v. Heiser, 993 F.Supp. 1136, 1146-47
(S.D. Ohio 1997).
The Humbert/Genesis Mechanical Bound by the CBA
Humberts/Genesis Mechanical ask the Court to reconsider its
finding that they are bound by the CBA. Attached to
Humbert's reply brief is the affidavit of Susan Humbert.
In it, she avers that she never signed the CBA or the
Contractor Sign-Up Sheet on behalf of Genesis Mechanical. In
deciding the motions for summary judgment, the undersigned
did not consider the affidavit of Susan Humbert, finding that
it contradicted her earlier deposition testimony. (Doc. 61,
PageID 1462-63, 1478). Specifically, the Court explained that
because she averred that she worked for Genesis Mechanical
for four weeks in 2009, she contradicted her earlier
deposition testimony that she did not have any involvement
with Genesis Mechanical.
Humberts argue that Susan Humbert's affidavit should have
been considered. They argue that her denial of involvement
with Genesis Mechanical in 2004 does not contradict her
deposition testimony. Moreover, they contend that Plaintiffs
did not ask Susan Humbert whether she had any role with
Genesis Mechanical in the past; rather, they only asked if
she had any role with Genesis Mechanical at the time of her
deposition to which she answered “no.” Plaintiffs
argue that assertion is false, and point out that she
answered “no” to the question “Have you
[done any sales for Genesis Mechanical] at any point in the
past.” (Doc. 42-4, PageID 546).
Court declines to reconsider its Opinion and Order in this
regard. The Court remains unconvinced that Susan Humbert had
no role in Genesis Mechanical. Regardless, Susan Humbert
averred she had never done any sales for Genesis Mechanical,
yet she was paid by Genesis Mechanical in 2009. Thus, her
affidavit contradicts her prior testimony and is insufficient
to create a genuine issue of material fact. Penny v.
UPS, 128 F.3d 408, 415 (6th Cir. 1997) (“[A] party
cannot create a genuine issue of material fact by filing an
affidavit, after a motion for summary judgment has been made,
that essentially contradicts his early deposition
testimony.”); see also Magnum Towing & Recovery
v. City of Toledo, 287 F.App'x 442, 448 (6th Cir.
2008) (quoting Penny, 128 F.3d at 415)
in the Opinion and Order, the Court pointed to numerous facts
after the CBA was signed in 2004, which show Genesis
Mechanical's intent to be bound by the CBA. First, the
“Contractor Sign-Up Sheet” for Genesis
Mechanical, submitted in conjunction with the executed copy
of the CBA, lists the “Owners Name” as
“Susan L. Humbert” and the “Contact”
as “Steve Humbert.” (Doc. 51-1, PageID 1246). In
November and December 2004, Genesis Mechanical submitted a
fringe benefit contribution report certifying that the report
included only employees covered under the terms of a CBA.
(Doc. 46, PageID 712-13). Fringe benefit reports continued to
be submitted to the Trust Funds on a monthly basis through
2010, along with contributions. (Doc. 41-3, PageID 434). The
undisputed evidence in the record shows that Genesis
Mechanical continued contributions through approximately July
2012. (Doc. 41-3, PageID 422; Doc. 46, PageID 712-878).
Finally, a $5, 000 check to Union No. 392 from CBS on ...