Marshall et al v. Anderson Excavating and Wrecking Co.
ORDER that the defendant's motion for new trial (filing 81 ) is denied. Ordered by Judge John M. Gerrard. (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROD MARSHALL, et al.,
ANDERSON EXCAVATING AND
WRECKING CO., a.k.a. ANDERSON
This matter is before the Court on the defendant's motion for new trial
(filing 81). The defendant's motion generally presents three arguments: the
defendant argues that the Court erred by (1) amending the pleadings to
conform to the evidence, (2) awarding damages for Jose Tovar's covered work,
and (3) awarding prejudgment interest. See filing 82. The Court finds no
merit to the defendant's arguments, and will deny the motion for new trial.1
To begin with, the defendant reiterates its claim that it was somehow
surprised at trial to be confronted with the theory that it had, by its conduct,
accepted CBAs subsequent to the 2004 CBA. Filing 82 at 2-5. The Court
recognizes that surprise during trial, by major variance in theory of recovery
or defense, undisclosed until after the trial is underway, is a long-established
ground for granting a new trial motion. Lampkins v. Thompson, 337 F.3d
1009, 1013 (8th Cir. 2003). But the Court, for the reasons explained in its
Findings of Fact and Conclusions of Law (filing 77), is unpersuaded by the
defendant's claim to have been surprised. Filing 77 at 12-13.
The defendant places great reliance on the pretrial order (filing 65), but
that order quite expressly identifies the controverted issue of "[w]hether the
collective bargaining agreement between International Union of Operating
Engineers, Local 571 and Anderson Excavating was terminated, modified or
The defendant's motion also suggests that it is entitled to a new trial based upon "newly
discovered evidence," filing 81 at 3, but the defendant did not identify what that evidence
was or why it would warrant a new trial.
replaced by another agreement sometime after April 30, 2006[.]" Filing 65 at
4. If the defendant was surprised at trial, it should not have been.2
Second, the defendant argues that the Court erred in finding the
defendant liable for delinquent contributions for 100% of the work Tovar
performed on the StratCom project and 15% of Tovar's other work. See filing
77 at 17-19. The defendant contends that the Court erred in considering an
alter ego theory, and in finding that the defendant was liable because it had
not kept accurate records of Tovar's work. Filing 82 at 5-7.
But the defendant's motion does not take issue with the Court's
explanation of the legal framework for these issues, which makes a
difference: the plaintiff has the threshold burden to produce evidence
showing that the defendant failed to report some covered work performed by
its employees, after which the burden shifts to the employer to produce
evidence of the precise amount of work performed or negate the inference
drawn from the plaintiff's evidence. Filing 77 at 14. Nor does the defendant
take issue with the Court's finding that the plaintiff met its initial burden
with respect to Tovar, shifting the evidentiary burden to the defendant.
Filing 77 at 17.
So, when the defendant argues that records were not maintained for
Tovar because he was an employee of Anderson Excavating Plus, not
Anderson Excavating, that is an explanation for the defendant's failure to
meet its evidentiary burden—but it is not an excuse. It was the defendant's
office manager who estimated that Tovar spent 15% of his time at job sites,
and the Court found that evidence to be credible. See filing 77 at 10, 17. It
was the defendant's burden to account for the time that Tovar spent working
at its job sites, and it failed to do so.
Nor can the Court hold the plaintiffs' failure to plead an alter ego
theory against it when the Court can find no indication in the record that the
defendant, prior to trial, asserted a denial or defense premised on the
supposed corporate distinction between itself and Anderson Excavating Plus. 3
A separate corporate entity that employs workers who perform tasks at job
The defendant also presents the plaintiffs' initial complaint as a "judicial admission" that
the 2004 CBA was binding. But that argument is also disposed of by constructive
amendment of the pleadings. See, Sunkyong Int'l, Inc. v. Anderson Land & Livestock Co.,
828 F.2d 1245, 1249 n.3 (8th Cir. 1987); Fruco Const. Co. v. McClelland, 192 F.2d 241, 245
(8th Cir. 1951).
The Court notes that many issues at trial might have been more clear had the defendant
not failed to file the trial brief and proposed findings of fact and conclusions of law that
were required of it pursuant to the pretrial order and this Court's local rules. See, filing 65
at 8; NECivR 39.2(a); NECivR 52.1. Thus, at this stage, the Court is unimpressed by the
defendant's complaint about supposedly being surprised at trial.
sites, thereby avoiding collective bargaining agreements and pension
obligations, is precisely the sort of chicanery that ERISA does not permit.
E.g., Trustees of Painters Union Deposit Fund v. Interior/Exterior Specialist
Co., 371 F. App'x 654, 660 (6th Cir. 2010); Cent. States, Se. & Sw. Areas
Pension Fund v. Sloan, 902 F.2d 593, 598 (7th Cir. 1990).
Nor is the Court persuaded by the defendant's contention that, had it
known that an alter ego theory might be at issue, it would have called
witnesses "to testify regarding the corporate formalities and the distinctions
between both companies" such as "separate books and records" and the
"corporate formalities observed." Filing 82 at 3. The test is not whether
corporate formalities are observed—to the contrary, it is whether the
businesses have independent existence "in form only." Greater Kansas City
Laborers Pension Fund v. Superior Gen. Contractors, Inc., 104 F.3d 1050,
1055 (8th Cir. 1997). The point of the test is that formalities are not enough,
and nothing the defendant suggests could have been proffered would rebut
the course of conduct upon which the Court's conclusion was based. See filing
77 at 18.
Finally, the defendant complains that there is no basis to award
prejudgment interest. But 29 U.S.C. § 1132(g)(2) requires the Court to award
interest or liquidated damages as provided by the benefits plan. The
defendant cannot complain that a request for interest was not pled when the
statute requires it, and when the complaint sought specific performance of an
agreement that, through the benefits plan, also requires it. See, filing 1 at 45; exhibit 8. Nor has the defendant provided any legal basis for its argument
that Nebraska state law limits the remedies for this federal claim. The
defendant also suggests that 26 U.S.C. § 6621 sets the appropriate interest
rate. Filing 81 at 15-16. But in this ERISA case, 29 U.S.C. § 1132(g)(2) is
IT IS ORDERED that the defendant's motion for new trial (filing
81) is denied.
Dated this 20th day of March, 2017.
BY THE COURT:
John M. Gerrard
United States District Judge
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