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Board of Trustees of Plumbers v. Humbert

United States District Court, S.D. Ohio, Western Division

March 30, 2017

BOARD OF TRUSTEES OF THE PLUMBERS, PIPEFITTERS & MECHANICAL EQUIPMENT SERVICE, LOCAL UNION NO. 392 PENSION FUND, et al. Plaintiffs,
v.
SUSAN L. HUMBERT D/B/A GENESIS MECHANICAL, et al., Defendants.

          OPINION AND ORDER

          Michael R. Barrett, Judge.

         This 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.

         I. BACKGROUND

         The 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. 61).

         The 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 Mechanical.

         In 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).

         Both 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).

         There 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[1]; 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).

         Reece/GMS 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.

         II. STANDARD

         Although 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. 1982).

         There 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).

         III. ANALYSIS

         A. The Humbert/Genesis Mechanical Bound by the CBA

         The 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.

         The 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).

         The 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)

         Moreover, 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 ...


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