MARK MCCLESKEY et al v. CWG PLASTERING, LLC

Filing 69

ORDER on 56 58 Cross-Motions for Summary Judgment - For the foregoing reasons, the Court DENIES Plaintiffs', Mark McCleskey, Trustee and Indiana State Council of Plasterers and Cement Masons Health and Welfare and Pension Funds, Motion for Summary Judgment, Dkt. No. 56 ; and GRANTS Defendant's CWG Plastering LLC's Motion for Summary Judgment, Dkt. No. 58 . The Court will enter judgment accordingly. (SEE ORDER). Signed by Judge Larry J. McKinney on 4/19/2017. (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MARK MCCLESKEY TRUSTEE,
INDIANA STATE COUNCIL OF
PLASTERERS AND CEMENT MASONS
HEALTH AND WELFARE AND PENSION
FUNDS,
Plaintiffs,
vs.
CWG PLASTERING, LLC, a Missouri
Limited Liability Company,
Defendant.

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No. 1:15-cv-01284-LJM-DKL

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on Plaintiffs’ Mark McCleskey Trustee, Indiana
State Council of Plasterers and Cement Masons Health and Welfare and Pension Funds
(collectively the “Funds”) and Defendant’s CWG Plastering, LLC (“CWG”) Cross-Motions
for Summary Judgment. Dkts. 56, 58. The Funds allege in their First Amended Complaint
that CWG is responsible for the debt owed to them by Walter Gianino d/b/a Gianino
Plastering (“Gianino Plastering”) under theories of successor liability and the alter ego
doctrine. Dkt. 20. Gianino Plastering entered into a collective bargaining agreement that
required it to make payments to the Funds, but it later became delinquent on payments.
The Funds sued for the money owed under the agreement and received a default
judgment against Gianino Plastering in the amount of $196,940.73, which remains
unsatisfied. See McCleskey v. Gianino, 1:11-cv-00791-JMS-DKL, Dkt. 33. Following the
default judgment, Gianino Plastering went out of business and Walter Gianino’s son, Curt

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Gianino, started a separate plastering business, CWG. The Funds allege that CWG is a
successor to Gianino Plastering and therefore responsible for the judgment levied against
it.
Because the undisputed facts demonstrate that CWG is neither the alter ego of
Gianino Plastering nor liable as its successor, the Funds’ motion for summary judgment
is DENIED and CWG’s motion for summary judgment is GRANTED.
I. BACKGROUND 1
Although the parties disagree on some minor details, after a review of the parties’
statements of undisputed material facts, as well as the attached records, the substantive
facts in this matter are not in dispute.
A. GIANINO PLASTERING
Walter Gianino (“Walter”) established Gianino Plastering in the metropolitan St.
Louis area in 1979. Dkt. 64, ¶¶ 1-2. Walter’s son, Curt, joined Gianino Plastering around
1994 as a plasterer. Id., ¶¶ 3-4. Gianino Plastering entered a union agreement with
Plasterers Local 3 in St. Louis, Missouri, beginning in October 2000. Id., ¶ 6. Walter
signed a Memorandum of Agreement and Collective Bargaining Agreement (“CBA”) with
Plasterers Local 3 on February 9, 2009. Id., ¶ 7. Pursuant to the CBA, signatory
employers must pay benefits to the Funds for each hour worked by plasterer employees
covered by the union agreement. Dkt. 57, ¶ 17.
Gianino Plastering became delinquent in his benefit contributions to the Funds,
which led to the Funds filing a lawsuit. Dkt. 64, ¶ 28; See McCleskey v. Gianino, 1:11-cv-

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The Court incorporates by reference all exhibits cited in the parties’ statements of
undisputed material facts.
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00791-JMS-DKL. On July 27, 2012, Magistrate Judge LaRue recommended a default
judgment in favor of the Funds and against Gianino Plastering in the amount of
$196,740.73. McCelskey v. Gianino 1:11-cv-00791-JMS-DKL, Dkt. 31. On August 14,
2012, Chief Judge Magnus-Stinson adopted this recommendation and entered judgment
on behalf of the Fund. Id., Dkts. 32, 33. The prior judgment against Gianino Plastering
remains unpaid. Dkt. 64, ¶ 30. Following the initial recommendation for judgment on
behalf of the FundS at the end of July 2012, Walter ceased operations at Gianino
Plastering. Id., ¶ 35.
Following the closure of Gianino Plastering, Walter incorporated under a different
name, Gianino and Son, in part to allow him to collect on outstanding receivables owed
to Gianino Plastering. Id., ¶ 122. Gianino and Son, however, did not perform any
plastering work or receive any money. Id.
B. CWG
CWG was formed on August 14, 2012, as a Missouri limited liability company that
performs plastering work in St. Louis. Id., ¶¶ 9-10, 12. Curt Gianino is the owner and
sole member of CWG. Id., ¶ 11. Curt initially invested $5,500.00 to capitalize CWG in
August 2012. Id., ¶ 77. Curt is also the only person who shares in the profits and losses
of CWG. Dkt. 66, ¶ 32. CWG leased two vehicles from a third party that were previously
used by Gianino Plastering. Dkt. 57, Ex. BB, Deposition of Curt Gianino (“Q. When did
your company first begin using the two Fords? A. When I first came in business and
started my company, Mr. Brand came to me and said I could use the vehicles with a fee
as long as I had insurance on them.”). CWG acquired no equipment from Gianino

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Plastering and purchased its own professional equipment from third-party vendors at
commercial prices. Dkt. 61-1, ¶ 14.
James Gildehaus worked for Gianino Plastering from 2005 until at least the end of
July 2012. Dkt. 64, ¶ 50. Gildehaus began working for CWG in August 2012 and received
his first CWG paycheck on August 17, 2012. Id., ¶ 49. Gildehaus’ last Gianino Plastering
paycheck was dated August 10, 2012. Id., ¶ 50. Gildehaus performed as an unskilled
laborer for Gianino Plastering, but was trained to do plastering work for CWG by Curt
following CWG’s formation. Dkt. 61-1, ¶ 24. When asked why he stopped working for
Gianino Plastering, Gildehaus recalled a conversation wherein Curt stated, “Hey,
[Walter]’s being sued and I’m starting my own company now and [Walter]’s no longer in
the picture.” Dkt. 64, ¶ 95.
Dan Giger was employed by Gianino Plastering for at least two years before Walter
closed the business. Id., ¶ 27. Giger received his last paycheck from Gianino Plastering
on August 10, 2012. Id., ¶ 53. Giger started working for CWG in August 2012, and
received his first CWG paycheck on August 24, 2012. Id., ¶¶ 52, 54.
Curt received his last paycheck from Gianino Plastering on August 10, 2012, and
his first CWG paycheck on August 17, 2012. Id., ¶¶ 55-56. In 2012, the only persons on
CWG’s payroll were Curt, Giger, and Gildehaus. Id., ¶ 110.
Walter began receiving pay from CWG in August 2013. Id., ¶ 11. Walter has not
contributed to the finances of CWG. Dkt. 61-1, ¶ 13. Walter does no hiring or supervision
of CWG employees and receives no income from CWG, except payment for hours worked
at an hourly rate.

Id., ¶¶ 18-19. Walter has not been employed with CWG since

September 2016. Id., ¶ 17.

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CWG and Gianino Plastering had at least eight of the same customers: HBD
Contracting, Norbert Markway Construction, Minton Homes, Glen Alspaugh Company,
625 S. Skinker Condominium Association, Steven and Sally Gelfman, Marion and Naomi
Balsalmo, and Douglas and Shari Coplan. Dkt. 64, ¶ 117. CWG and Gianino Plastering
also shared the same insurance broker and accountant. Id., ¶¶ 80-81. 2 Finally, CWG
and Gianino Plastering use the same material suppliers. Id., ¶ 71.
Curt derived no profit from Gianino Plastering and does not owe it any money. Dkt.
61-1, ¶ 31.
C. LJPP JOB
Gerald Hill is a project manager for HBD Construction, Inc. (“HBD”), a general
contractor in St. Louis, Missouri. Id., ¶ 36. In the Fall of 2012, Hill was in charge of
obtaining a plastering subcontractor for a project known as “LJPP,” located at 904
Weidman Road in Chesterfield, Missouri. Id., ¶ 37. In June 2011, Gianino Plastering
submitted a bid for the LJPP job and continued to submit documents for the bid through

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The parties dispute both whether CWG and Gianino Plastering shared the same
accountant for business purposes and the date that the accountant, Sharamitaro &
Associates, P.C., was retained. Because CWG failed to properly deny the allegation by
citing to evidence in the record, it is deemed admitted. In fact, all of CWG’s denials and/or
qualifying admissions are without any citation to evidence in the record. This is contrary
to Local Rule 56-1(e), which requires a party to support each fact asserted with a
discovery response, deposition, affidavit, or some other admissible evidence in the record
or in an appendix to the brief. Local Rule 56-1(e) also states that “[t]he citation must refer
to a page or paragraph number or otherwise similarly specify where the relevant
information can be found in the supporting evidence.” See also Fed. R. Civ. P. 56(c)(1)(A)
(“A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in the record …”). CWG simply
denies the Funds’ facts and claims an alternative version of each event without citation
or evidence of record. Thus, aside from the facts asserted in the supplemental affidavit
provided by Curt Gianino (Dkt. 61-1), the Court construes all denials not properly
supported by evidence in favor of the Funds.
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April 2012. Id., ¶ 38. Hill knew of Walter Gianino and Gianino Plastering from previous
HBD projects. Id., ¶ 39. By July 9, 2012, Gianino Plastering was awarded the LJPP
plastering contract. Id., ¶ 40. Sometime around July 27, 2012, Walter and Curt Gianino
met with Hill and advised him that Gianino Plastering closed, but indicated that Curt would
be opening a new business and would honor the original Gianino Plastering bid. Id., ¶
41. Hill awarded CWG the work and sent CWG a revised subcontract on August 17,
2012, which Curt returned to him the same day. Id., ¶¶ 42-43. The plaster work on the
LJPP project began in July 2012. Id., ¶ 44. On August 22, 2012, HBD tendered its first
payment to CWG on the LJPP project in the amount of $28,800.00. Id., ¶ 45. As the
LJPP project continued, new plastering requirements arose and Hill negotiated additional
work and payment for CWG with Curt. Dkt. 57-7, ¶ 9. This was CWG’s first customerpayment-deposit. Dkt. 64, ¶ 76.
D. 546 DONNE PROJECT
Thomas Bourgeois is a partner at the firm Glen Alspaugh Company, LLP
(“Alspaugh”), where his duties include procurement of plastering subcontractors on
Alspaugh projects. Id., ¶¶ 96-97. Bourgeois utilized Gianino Plastering whenever it
required plastering work. Id., ¶ 98. Bourgeois’ contact at Gianino Plastering was Walter.
Id. In January 2014, Alspaugh required plastering work at its 546 Donne project in St.
Louis, Missouri. Id., ¶ 99. Bourgeois contacted Walter about the 546 Donne project and
believed that he had retained the services of Gianino Plastering to complete the plastering
for the project. Id., ¶ 100. Sometime thereafter, Alspaugh received an invoice from CWG,
a company that he had not heard of prior to the invoice. Id., ¶¶ 101-02. Bourgeois never
spoke to Curt Gianino about the 546 Donne project. Id., ¶ 103.

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II. SUMMARY JUDGMENT STANDARD
On cross-motions for summary judgment, the Court must apply the ordinary
standards pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Rule 56”) as to
each individual motion. See McKinney v. Cadleway Props., Inc., 548 F.3d 496, 504 n.4
(7th Cir. 2008); Chevron U.S.A. v. Mobil Prod. Tx. & N.M., 281 F.3d 1249, 1252-53 (Fed.
Cir. 2002).

In other words, each motion must be considered separately and the

nonmoving party must be given the benefit of favorable inferences. Chevron, 281 F.3d
at 1253.
As stated by the Supreme Court, summary judgment is not a disfavored procedural
shortcut, but rather is an integral part of the federal rules as a whole, which are designed
to secure the just, speedy, and inexpensive determination of every action. See Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also United Ass’n of Black Landscapers
v. City of Milwaukee, 916 F.2d 1261, 1267–68 (7th Cir. 1990). Rule 56(a) provides in
relevant part: "The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law."
Once a party has made a properly-supported motion for summary judgment, the
opposing party may not simply rest upon the pleadings but must instead submit
evidentiary materials showing that a fact either is or cannot be genuinely disputed. Fed.
R. Civ. P. 56(c)(1). A genuine issue of material fact exists whenever “there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears
the burden of demonstrating that such a genuine issue of material fact exists. See

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986);
Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). It is not the duty
of the Court to scour the record in search of evidence to defeat a motion for summary
judgment; rather, the nonmoving party bears the responsibility of identifying applicable
evidence. See Goodman, 621 F.3d at 654; Bombard v. Fort Wayne Newspapers, Inc.,
92 F.3d 560, 562 (7th Cir. 1996).
In evaluating a motion for summary judgment, the Court draws all reasonable
inferences from undisputed facts in favor of the nonmoving party and views the disputed
evidence in the light most favorable to the nonmoving party. See Berry v. Peterman, 60
F.3d 435, 438 (7th Cir. 2010); Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996).
The mere existence of a factual dispute, by itself, is not sufficient to bar summary
judgment. Only factual disputes that might affect the outcome of the suit in light of the
substantive law will preclude summary judgment. See Anderson, 477 U.S. at 248; JPM
Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or
unnecessary facts do not deter summary judgment, even when in dispute. See Clifton v.
Schafer, 969 F.2d 278, 281 (7th Cir. 1992). If the moving party does not have the ultimate
burden of proof on a claim, it is sufficient for the moving party to direct the Court to the
lack of evidence as to an element of that claim. See Green v. Whiteco Indus., Inc., 17
F.3d 199, 201 & n.3 (7th Cir. 1994). “If the nonmoving party fails to establish the existence
of an element essential to [its] case, one on which [it] would bear the burden of proof at
trial, summary judgment must be granted to the moving party.” Ortiz v. John O. Butler
Co., 94 F.3d 1121, 1124 (7th Cir. 1996).

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III. DISCUSSION
The Funds seek relief under the alter ego doctrine and successor liability. They
argue that CWG is merely a continuation of Gianino Plastering in a different corporate
form and therefore, Gianino Plastering’s liability should be imputed to CWG.
CWG first argues that insufficient facts exist to establish either of the Funds’
theories, and therefore it should be granted judgment as a matter of law. CWG then
contends that this Court lacks personal jurisdiction over it. Further, CWG asserts that
Gianino Plastering’s monetary obligations under the CBA were discharged in bankruptcy,
and therefore this Court does not have jurisdiction over the claims.

Finally, CWG

contends that adjudication of post-bankruptcy conduct of an alter ego lies within the
exclusive jurisdiction of the National Labor Relations Board (“NLRB”).
A. PERSONAL JURISDICTION
CWG asserts that this Court lacks personal jurisdiction over it because CWG does
not do business in Indiana, none of its employees or officers reside in Indiana, and CWG
was not a signatory to the CBA. Dkt. 61, pp. 4-5. Although CWG denied the Funds’
personal jurisdiction allegations in its Answer filed on May 16, 2016, Dkt. 22, p. 6, CWG
waited until filing its Motion for Summary Judgment on February 2, 2017, to raise the
affirmative defense. While the Court notes that CWG filed a Motion to Dismiss on
November 27, 2015, asserting, inter alia, a lack of personal jurisdiction, Dkt. 14, CWG’s
motion was denied as moot on June 20, 2016, after the Funds filed their Amended
Complaint. Dkt. 27. CWG did not again raise the matter until this stage in the litigation,
and participated in various hearings conducted by this Court, as well as discovery, after
its motion was deemed moot. See dkts. 32, 44, 47, 50, 53. CWG has required effort of

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the Court in addition to providing the expectation to the Funds that it would defend this
suit on the merits, which in turn results in a waiver of its personal jurisdiction defense.
See Mobile Anesthesiologists Chi., LLC v. Anesthesia Assocs. of Houston Metroplex,
P.A., 623 F.3d 440, 443 (7th Cir. 2010) (“To waive or forfeit a personal jurisdiction
defense, a defendant must give a plaintiff a reasonable expectation that it will defend the
suit on the merits or must cause the court to go to some effort that would be wasted if
personal jurisdiction is later found lacking.”).
Moreover, CWG provides no contextual analysis and does not cite to any relevant
authority to support the relief it seeks, see Dkt. 61, at 4-5, let alone reply to the Funds’
assertion that CWG has forfeited its personal jurisdiction argument. This is simply not
enough. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“[P]erfunctory
and undeveloped arguments, and arguments that are unsupported by pertinent authority,
are waived …”).
B. BANKRUPTCY
CWG also contends that the issue of collecting Gianino Plastering’s debt, has
already been foreclosed in bankruptcy. 3 Dkt. 61, at 5. CWG cites to various cases in
other jurisdictions and simply concludes that principals of res judicata and collateral
estoppel bar the instant claims against CWG. It has been established, however, that a
successor liability claim “does not directly implicate the Bankruptcy Code, since the
underlying bankruptcy proceeding is long over.”

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Chi. Truck Drivers, Helpers &

CWG notes that this matter “was discharged in [bankruptcy]. See Exhibit E, attached
and incorporated by reference as if expressly set forth herein.” Dkt. 61, p. 5. CWG fails,
however, to attach any documentation with its brief. Nonetheless, the Fund does not
dispute Gianino Plastering’s discharge in debt and therefore the Court will assume that
Gianino Plastering’s debt was discharged in bankruptcy.
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Warehouse Workers Union Pension Fund v. Tasemkin, Inc., 59 F.3d 48, 50 n. 2 (7th Cir.
1995). The Tasemkin court went on to conclude that a pension fund may pursue a
successor liability claim against a bankrupt entity’s tranferee, noting that “a second
chance is precisely the point of successor liability.” Id. The court further noted that a
significant factor in determining successor liability is any recovery of the pension fund
debt in the original bankruptcy proceeding. Id. Here, there was no such recovery in the
bankruptcy proceeding. See Dkt. 64, ¶ 30. This successor liability allegation against
CWG is not barred by the bankruptcy discharge of Gianino Plastering.
C. NLRB
CWG states that “[t]o the extent that this Complaint seeks to adjudicate postbankruptcy conduct of an alter-ego, such claims are ordinarily the exclusive jurisdiction
of the National Labor Relations Board.” Dkt. 61, at 5. CWG cites to In re Goodman, a
case involving unfair labor practice charges against a company filed by the NLRB and a
local union. 873 F.2d 598 (7th Cir. 1989). But the Funds do not seek to enforce an unfair
labor practice claim. They seek to collect on a debt owed under the CBA. Without an
unfair labor practice allegation, the NLRB has no role to play. See Moriarty v. Larry Gl.
Lewis Funeral Dirs. Ltd., 150 F.3d 773, 776 (7th Cir. 1998). The “Funds’ claims are based
on contracts rather than principles of labor law.” Id.

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D. SUCCESSOR LIABILITY 4 & ALTER EGO DOCTRINE
The Funds first assert that CWG is liable as Gianino Plastering’s successor for the
obligations incurred under the CBA. Dkt. 57, pp. 17-22. “The general common law rule
of successor liability holds that . . . where one company sells its assets to another
company, the latter is not liable for the debts and liabilities of the seller.” Tsareff v.
ManWeb Servs., Inc., 794 F.3d 841, 845 (7th Cir. 2015). Even so, imposing successor
liability for unpaid multi-employer pension fund contributions effectuates various
congressional policies and goals to “hold withdrawing employers liable for their share of
their plan’s unfunded vested pension benefits[.]” Id. at 845-46. This goal is established
by striking “a balance between the need to effectuate federal labor policies with ‘the social
interest in facilitating the market in the transfer of corporate or other productive assets.’”
Id. at 847 (quoting Upholsterers’ Intern. Union Pension Fund v. Artistic Furniture of
Pontiac, 920 F.2d 1323, 1325 (7th Cir. 1990)).
To impose successor liability for unpaid multi-employer pension fund withdrawal
liability, a plaintiff must demonstrate that: “(1) the successor had notice of the prior claim
against the predecessor prior to acquisition; and (2) there was ‘substantial continuity in
the operation of the business before and after the sale.’” Tasemkin, 59 F.3d at 49 (quoting
E.E.O.C. v. G-K-G, Inc., 39 F.3d 740, 748 (7th Cir. 1994)).
Because CWG does not dispute the fact that Walter informed Curt about the
judgment and dissolution of Gianino Plastering before Curt decided to start CWG, see

CWG focused its brief on the single-employer doctrine rather than successor liability as
alleged by the Funds. Dkt. 61, pp. 3-4. Nonetheless, CWG provided argument and facts
in response to the Funds’ alter ego argument, which is a substantially similar analysis to
a successor liability claim. The Court is therefore able to adequately address the merits
of the parties’ successor liability arguments.
4

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Dkt. 64, ¶ 64, the Court must only determine whether or not there was a substantial
continuity in the operation of Gianino Plastering following its dissolution, which will be
“satisfied if no major changes are made in that operation.” G-K-G, Inc., 39 F.3d at 748.
Determining “[s]ubstantial continuity requires a fact-centered analysis.” Sullivan v.
Running Waters Irrigation, Inc., 739 F.3d 354, 357 (7th Cir. 2014). Relevant factors to
determine substantial continuity include: (1) employing substantially all of the predecessor
workforce; (2) employing the same supervisory personnel; (3) use of the predecessor’s
plant, machinery, and equipment; (4) manufacturing the same product or providing the
same service; (5) honoring the predecessor’s work orders and warranty claims; and (6)
continuation of managerial personnel in similar positions. See Artistic Furniture 920 F.2d
at 1329; see also N.L.R.B. v. Jarm Enters., Inc., 785 F.2d 195, 200 (7th Cir. 1986).
The Fund also alleges that CWG is liable as the alter ego of Gianino Plastering.
The “alter ego doctrine focuses on the existence of a disguised continuance of a former
business entity or an attempt to avoid the obligations of a collective bargaining
agreement, such as through a sham transfer of assets.” Cent. States, Se. & Sw. Areas
Pension Fund v. Sloan, 902 F.2d 593, 596 (7th Cir. 1990) (quotation marks and citation
omitted). The various factors relevant to an alter ego claim are: (1) substantially identical
management; (2) business purpose; (3) operation; (4) equipment; (5) customers; (6)
supervision; and (7) ownership. See Int’l Union of Operating Eng’rs, Local 150, AFL-CIO
v. Rabine, 161 F.3d 427, 433 (7th Cir. 1998). The alter ego doctrine also requires a
showing of unlawful motive or intent, which are “critical inquiries in an alter-ego analysis.”
Cent. States, Se. & Sw. Areas Pension Fund v. Cent. Transp., Inc., 85 F.3d 1282, 1288
(7th Cir. 1996).

As the Funds concede, these factors, aside from the additional

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requirement of fraudulent intent, are markedly similar to those set forth in determining
successor liability.
Even taking the facts in the light most favorable to the Funds, neither the successor
liability nor the alter ego doctrine impute liability to CWG. Here (1) there was no continuity
of management from Gianino Plastering to CWG; (2) no physical assets were transferred
from one business to the other; (3) Curt provided the capital to start CWG, and there is
no evidence he received a loan from Walter for the startup; (4) CWG used the same
trucks, but paid for the leases, and the eventual purchase, with its own money; (5) CWG
received the LJPP contract because of the purchaser’s experience with Curt, not because
of some perceived obligation to or understanding of the continuation of Gianino
Plastering; and (6) that CWG received the contract with 546 Dunne was more fortuitous
than evidence of continuity of operations. Further, although some employees were the
same, Gildehaus did not work for Gianino Plastering as a plasterer, rather, Curt trained
him to plaster after he started working for CWG. Moreover, Walter did not begin working
for Curt until a year after Gianino Plastering failed. All of these factors, taken together,
would prohibit a reasonable jury from finding successor or alter ego liability; there are
simply too many differences between the entities.

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IV. CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiffs’, Mark McCleskey, Trustee
and Indiana State Council of Plasterers and Cement Masons Health and Welfare and
Pension Funds, Motion for Summary Judgment, Dkt. No. 56; and GRANTS Defendant’s
CWG Plastering LLC’s Motion for Summary Judgment, Dkt. No. 58. The Court will enter
judgment accordingly.
IT IS SO ORDERED this 19th day of April, 2017.

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Donald D. Schwartz
ARNOLD AND KADJAN, LLP
[e-mail]
William P. Hogan
HOGAN LAW FIRM
[e-mail]

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