United States District Court, S.D. Ohio, Eastern Division
CAROL A. Wilson, et al., Plaintiffs,
A&K ROCK DRILLING, INC., Defendant.
OPINION AND ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Motion for Summary Judgment
(ECF No. 23) of Plaintiffs Carol A. Wilson and the Trustees
of the Ohio Operating Engineers Health and Welfare Plan, the
Ohio Operating Engineers Pension Fund, the Ohio Operating
Engineers Education and Training Fund, and the Ohio Operating
Engineers Apprenticeship Fund (the “Funds”), and
the Motion for Summary Judgment (ECF No. 26) of Defendant
A&K Rock Drilling, Inc. (“A&K”). For the
following reasons, the Court GRANTS the
Funds' Motion and DENIES A&K's
parties do not dispute the underlying facts, which can be
summarized as follows. The Funds are jointly administered,
multiemployer fringe benefit programs established for the
benefit of employees of contractors who perform work pursuant
to collective bargaining agreements with the Union. (ECF No.
23). A&K was a corporation engaged in the contracting
industry. (ECF Nos. 13 at ¶¶ 2, 26 at 2). A&K
was privately held by Mr. Edward Atherton and Mr. Gregory
Klodt. (ECF No. 26-2.).
March 2002, A&K executed the first of three
“Acceptance of Agreement” with the Ohio
Contractors Association and an Acceptance of Agreement with
the Associated General Contractors of Ohio Labor Relations
Division (“Collective Bargaining Agreements” or
“CBAs”). (ECF Nos. 13 at ¶ 5, 23-1). Gregory
Klodt acted on behalf of A&K in executing these
Collective Bargaining Agreements. (ECF No. 26-3). The CBAs,
which incorporated by reference four Trust
Agreements, obligated A&K to contribute to the
Funds' fringe benefit funds for all hours worked by
A&K employees. Specifically, the CBAs provide:
Fringe benefit contributions shall be paid at the following
rates for all hours paid to each employee by the Employer
under this Agreement which shall in no way be considered or
used in the determination of overtime pay. Hours paid shall
include holidays and reporting hours which are paid.
Highway Agreement at ¶ 35 (ECF No. 23-1 at PageID 333);
Ohio Building Agreement at ¶ 45 (ECF No. 23-1 at PageID
Funds conducted an audit of A&K's payroll records in
November 2015 for the period of January 1, 2004 to November
1, 2015 and concluded that were a number of hours worked
during the audit period for which contributions had not been
made. (ECF No. 15 at 6). These included hours on behalf of
Klodt and D.T. Colopy for time worked between January 2004
and March 2008. (ECF No. 26 at 4). The Funds sent a letter to
A&K requesting the unpaid fringe benefits and interest,
for a total demand of $56, 147.80. (ECF No. 26-3).
Funds initiated this suit in July 2016, seeking delinquent
fringe benefit contributions, interest, liquidated damages,
and costs under the CBAs, the Employee Retirement Security
Income Act of 1974 (“ERISA”), and the Labor
Management Relations Act of 1947 (“LMRA”). (ECF
No. 1). In November of 2016, A&K filed a Motion to
Dismiss, arguing that the claims are barred by the relevant
statute of limitations and fail to state a claim for which
relief can be granted with respect to the contributions on
behalf of Gregory Klodt. (Doc. 15). First, A&K argued
that Ohio's current eight-year statute of limitations for
contracts actions applied, barring all claims since the
delinquent payments began in January 2004. (Id.).
Second, A&K argued that it was not obligated to make
contributions on Klodt's behalf because-as an owner and
authorized representative of A&K-Klodt was an employer,
not an employee. As part of its argument, A&K alleged
that federal labor laws prohibit the company from
contributing to the Funds on Klodt's behalf because he
qualifies as an employer under the LMRA.
of 2017, this Court denied the Motion to Dismiss. (ECF No.
31). The Court rejected A&K's statute of limitations
argument and held that Ohio's previous fifteen-year
statute of limitations for contract actions governs, since
the claims accrued prior to the amendment that changed the
applicable statute of limitations to eight years. Thus, on
the first issue, this Court held that the claims were not
time-barred. (ECF No. 31). On the second issue relating to
contributions on behalf of Klodt, the Court held that it
could not determine at the motion to dismiss stage whether
Klodt was an “employer” or an
“employee” under the CBAs. The Court did,
however, reject A&K's argument that it would be
illegal for A&K to contribute money on Klodt's
behalf. (ECF No. 31).
April of 2017 and May of 2017, the Funds and A&K,
respectively, moved for Summary Judgment under Federal Rule
of Civil Procedure 56(a). Both motions were filed before this
Court ruled on the Motion to Dismiss in June of 2017. The
Funds seek summary judgment against A&K in the amount of
$39, 061.18 for delinquent contributions, $81, 024.48 for
accumulated interest calculated through April 15, 2017, plus
late charges of $19.27 per day thereafter and statutory
interest in the amount of $81, 024.48 calculated through
April 15, 2017, plus late charges of $19.27 per day
thereafter. (ECF No. 23). A&K seeks summary judgment in
its favor arguing first that the claims fall outside the
statute of limitations, and second, that no contributions are
owed on Klodt's behalf. (ECF No. 26). The motions are
fully briefed and ripe for review.
STANDARD OF REVIEW
Rule of Civil Procedure 56(a) provides, in relevant part,
that summary judgment is appropriate “if the movant
shows that there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of
law.” A fact is deemed material only if it “might
affect the outcome of the lawsuit under the governing
substantive law.” Wiley v. United States, 20
F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving
party must then present “significant probative
evidence” to show that “there is [more than] some
metaphysical doubt as to the material facts.” Moore
v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir.
1993). The mere possibility of a factual dispute is
insufficient to defeat a motion for summary judgment. See
Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir.
1992). Summary judgment is inappropriate, however, “if
the dispute about a material fact is ‘genuine, '
that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248.
necessary inquiry for this Court is “whether ‘the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.'” Patton
v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting
Anderson, 477 U.S. at 251-52). In evaluating such a
motion, the evidence must be viewed in the light most
favorable to the nonmoving party. United States S.E.C. v.
Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th
Cir. 2013). The mere existence of a scintilla of evidence in
support of the opposing party's position will be
insufficient to survive the motion; there must be evidence on
which the jury could reasonably find for the opposing party.
See Anderson, 477 U.S. at 251; Copeland v.
Machulis, 57 F.3d 476, 479 (6th Cir. 1995).