Greater Kansas City Laborers Pension Fund et al v. Al Muehlberger Concrete Company, LLC

Filing 40

ORDER denying 25 motion for summary judgment Signed on 10/26/15 by District Judge Stephen R. Bough. (Amos, Gloria)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
GREATER KANSAS CITY LABORERS
PENSION FUND, et al.
Plaintiffs,
v.
AL MUEHLBERGER CONCRETE
COMPANY, LLC.,
Defendant.

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Civil No. 4:14-CV-229-SRB

ORDER
Before the Court is Plaintiffs’ Motion for Summary Judgment. (Doc. #25). For the
reasons stated below, Plaintiffs’ motion is denied.
I.

Legal Standard
A moving party is entitled to 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.” Fed. R. Civ. P. 56(a). Material facts are those “that might affect the outcome of the suit
under the governing law,” and a genuine dispute over a material fact is one “such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
“Summary judgment is appropriate if the evidence, viewed in the light most favorable to
the [nonmovant] and giving [the nonmovant] the benefit of all reasonable inferences, shows there
are no genuine issues of material fact and [the movant] is entitled to judgment as a matter of
law.” Price v. N. States Power Co., 664 F.3d 1186, 1191 (8th Cir. 2011) (citation omitted).
“Once the moving party has made and supported their motion, the nonmoving party must proffer

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admissible evidence demonstrating a genuine dispute as to a material fact.” Holden v. Hirner,
663 F.3d 336, 340 (8th Cir. 2011) (citation omitted). A party opposing summary judgment “may
not rest upon mere allegations or denials of his pleading, but must set forth specific facts
showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. “Mere allegations,
unsupported by specific facts or evidence beyond the nonmoving party’s own conclusions, are
insufficient to withstand a motion for summary judgment.” Thomas v. Corwin, 483 F.3d 516,
526–27 (8th Cir. 2007) (citation omitted). Summary judgment should not be granted if a
reasonable jury could find for the nonmoving party. Woodsmith Publ’g Co. v. Meredith Corp.,
904 F.2d 1244, 1247 (8th Cir. 1990) (citing Anderson, 477 U.S. at 248).
II.

Background
Considering the parties’ factual positions as well as the record made at the in-person

hearing held on October 13, 2015, in the light most favorable to the non-moving party, the Court
finds the relevant facts to be as follows:
Plaintiff the Greater Kansas City Laborers Pension Fund (“Pension Fund”) is a trust fund
and employee benefit plan that was established on April 24, 1965. The situs of the Pension Fund
is Kansas City, Missouri. The Pension Fund is primarily funded by participating employers’
contributions pursuant to negotiated collective bargaining agreements between labor
organizations that represent the employees of those same employers. Under ERISA, the trustees
of the Pension Fund are authorized to bring civil actions on behalf of the Pension Fund for the
purposes of collecting withdrawal liability.
Al Muehlberger Concrete Construction, Inc. (“INC”) was an employer who contributed
to the Pension Fund. On August 15, 2010, INC was administratively dissolved. The dissolution
constituted a complete withdrawal from the Pension Fund, which triggered withdrawal liability

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to the Pension Fund. INC failed to make the payments demanded by the Pension Fund pursuant
to 29 U.S.C. §§ 1381 et seq.
The Pension Fund filed the present case on March 10, 2014, against Al Muehlberger
Concrete Construction, LLC (“LLC”), seeking to hold LLC liable for INC’s withdrawal liability
under a theory of successor liability. The parties dispute whether LLC is INC’s successor, and
disagree about, among other things, whether there was a direct transfer of assets from INC to
LLC and whether there was a continuity of ownership. Plaintiff Pension Fund, by its motion for
summary judgment, seeks a ruling that LLC is a successor to INC, and thus liable for INC’s
withdrawal liability.
III.

Discussion
Plaintiff Pension Fund argues LLC is INC’s successor and that it has presented

“conclusive evidence that there is substantial continuity between the predecessor [INC] and
[Defendant LLC].” (Doc. #26, p. 15; Doc. #38, p. 9). LLC contends that genuine issues of
material fact remain regarding whether it can be held liable as a successor “for the past debts of a
wholly separate, wholly distinct, long-defunct corporation.” (Doc. #33, p. 1).
“The doctrine of successor liability provides an equitable exception to the general rule
that a buyer takes the assets of his predecessor free and clear of all liabilities . . . .” Nutt v. Kees,
796 F.3d 988, 990 (8th Cir. 2015). “[Successor liability] allows a plaintiff with a claim against
the seller to collect from the purchaser . . . [and] ensures that a victimized plaintiff has a
complete remedy for the harm he suffered, even if the actual wrongdoer is defunct or otherwise
unable to redress his damages.” Id. “The leading approach to resolving questions of successor
liability remains . . . a nine-factor test to be applied on a case-by-case basis.” Prince v. Kids Ark
Learning Ctr., LLC, 622 F.3d 992, 995 (8th Cir. 2010). “These considerations include: (1)

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whether the successor company had notice of the charge; (2) the ability of the predecessor to
provide relief; (3) whether there has been a substantial continuation of business operations; (4)
whether the new employer uses the same plant; (5) whether the new employer uses the same or
substantially the same work force; (6) whether the new employer uses the same or substantially
the same supervisory personnel; (7) whether the same jobs exist under substantially the same
working conditions; (8) whether the new employer uses the same machinery, equipment, and
methods of production; and (9) whether the new employer produces the same product.” Id. “In
light of the difficulty of the successorship question . . . emphasis on the facts of each case as it
arises is especially appropriate.” Chicago Truck Drivers v. Tasemkin, Inc., 59 F.3d 48, 49 (7th
Cir. 1995) (citing Howard Johnson Co., Inc. v. Detroit Local Joint Exec. Bd., 417 U.S. 249, 256
(1974)) (internal quotations omitted); see also Steinbach v. Hubbard, 51 F.3d 843, 846 (9th Cir.
1995).
Initially, the parties disagree, and present conflicting evidence, as to whether LLC is
INC’s “successor.” Defendant LLC disputes a number of facts that Plaintiff Pension Fund relies
on to establish substantial continuity, such as whether the entities shared the same owner, shared
a significant number of employees, and shared the same type of work. Further, the parties
disagree upon a number of the other nine factors this court will evaluate at trial to determine
whether successor liability is proper. Thus, based upon the summary judgment record, viewed
favorably to LLC, there are genuine disputes of material fact, and summary judgment is
inappropriate. See, e.g., Welch v. Coatings & Sys. Integration, Ltd., No. 1:12-CV-49-SNLJ,
2013 WL 943559, at *4 (E.D. Mo. Mar. 11, 2013) (denying Defendant’s motion for summary
judgment regarding successor liability where “Plaintiff has shown that disputed issues of fact

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exist” . . . “as to whether [an alleged successor company] is a continuation of and thus liable for
the acts of [two alleged predecessor companies]”).
IV.

Conclusion
For the foregoing reasons, it is hereby ORDERED: Plaintiffs’ Motion for Summary

Judgment (Doc. #25) is DENIED.

IT IS SO ORDERED.
/s/ Stephen R. Bough
STEPHEN R. BOUGH
UNITED STATES DISTRICT JUDGE
Dated: October 26, 2015

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