Trustees of the Construction Industry and Laborers Health and Welfare Trust et al v. Pro-Cut LLC

Filing 77

ORDER. IT IS HEREBY ORDERED that 71 Trustees' Motion for Reconsideration is DENIED. Signed by Chief Judge Gloria M. Navarro on 1/31/17. (Copies have been distributed pursuant to the NEF - MR)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 TRUSTEES OF THE CONSTRUCTION INDUSTRY AND LABORERS HEALTH AND WELFARE TRUST, et al., Trustees, 6 vs. 7 8 PRO-CUT LLC, Defendant. 9 ) ) ) ) ) ) ) ) ) ) ) Case No.: 2:12-cv-00205-GMN-VCF ORDER 10 Pending before the Court is Trustees’1 Motion for Reconsideration, (ECF No. 71), of the 11 12 Court’s Order, (ECF No. 70), entered April 26, 2016. Intervenors Evelyn Bruns-Witt, CM 13 Builders, Inc., Forte Speciality Contractors, LLC, and Aegis Security Insurance Company 14 (collectively “Intervenors”) filed a Response, (ECF No. 74), and Trustees filed Reply, (ECF 15 No. 76). For the reasons discussed below, the Court DENIES Trustees’ Motion. 16 I. BACKGROUND This case centers upon the Trustees’ claims against Defendant Pro-Cut, LLC (“Pro- 17 18 Cut”) for delinquent ERISA contributions owed by its alleged alter ego, B. Witt Concrete 19 Cutting, Inc. (“B. Witt”).2 On August 9, 2013, the Court found that Pro-Cut was the alter ego 20 of B. Witt. (Order 8:8, ECF No. 40). As a result, the Court granted the Trustees’ motion for 21 summary judgment and denied Pro-Cut’s competing motions for summary judgment. (Id. 8:9). 22 23 24 “Trustees” are the Board of Trustees of the Construction Industry and Laborers Health and Welfare Trust; the Board of Trustees of the Construction Industry and Laborers Joint Pension Trust; the Board of Trustees of the Construction Industry and Laborers Vacation Trust; and the Board of Trustees of Southern Nevada Laborers Local 872 Training Trust. 1 25 2 Pro-Cut declared bankruptcy on January 22, 2014. (See Notice of Bankruptcy 1:23, ECF No. 50). Page 1 of 3 1 Accordingly, the Clerk of Court entered judgment in favor of the Trustees that same day. 2 (Clerk’s J., ECF No. 41). 3 On April 15, 2015, the Court granted the parties’ stipulated motion to reopen this case 4 for the limited purpose of reviewing subject matter jurisdiction. (Order, ECF No. 56). Shortly 5 thereafter, Intervenors filed a Motion pursuant to Federal Rule of Civil Procedure 60(b)(4) to 6 set aside the Court’s Order granting the Trustees’ Motion for Summary Judgment. (Mot. to Set 7 Aside 1:24–25, ECF No. 57). The Court granted Intervenors’ Motion to Set Aside, finding that 8 “this case is a ‘garden-variety judgment-enforcement action based on a retroactive alter-ego 9 claim.’” (Order 4:15–16, ECF No. 70) (quoting Ellis v. All Steel Const., Inc., 389 F.3d 1031, 10 1036 (10th Cir. 2004)). The instant Motion asks the Court to reconsider its Order. (See Mot. 11 for Reconsideration, ECF No. 71). 12 II. LEGAL STANDARD 13 “[A] motion for reconsideration should not be granted, absent highly unusual 14 circumstances.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Reconsideration is 15 appropriate where: (1) the court is presented with newly discovered evidence, (2) the court 16 committed clear error or the initial decision was manifestly unjust, or (3) if there is an 17 intervening change in controlling law. School Dist. No. 1J, Multnomah County v. ACandS, Inc., 18 5 F.3d 1255, 1263 (9th Cir. 1993). However, a motion for reconsideration is not a mechanism 19 for rearguing issues presented in the original filings, Backlund v. Barnhart, 778 F.2d 1386, 20 1388 (9th Cir. 1985), or “advancing theories of the case that could have been presented earlier,” 21 Resolution Trust Corp. v. Holmes, 846 F. Supp. 1310, 1316 (S.D. Tex. 1994). Thus, Rules 22 59(e) and 60(b) are not “intended to give an unhappy litigant one additional chance to sway the 23 judge.” See Durkin v. Taylor, 444 F. Supp. 879, 889 (E.D. Va. 1977). 24 25 Page 2 of 3 1 III. DISCUSSION Plaintiff requests that the Court “reconsider its Order because Pro-Cut’s direct, ongoing 2 3 liability for Trust Fund contributions presents a federal question and there is, therefore requisite 4 arguable basis for jurisdiction.” (Mot. to Reconsider 3:2–4, ECF No. 71). However, the Court 5 has reviewed its prior Order and the arguments presented by Trustees and has found no reason 6 to overturn its Order. The Court finds neither clear error nor manifest injustice in its reasoning 7 that ERISA fails to confer federal jurisdiction over this matter. Further, jurisdiction is not 8 proper under § 301 of the Labor Management Relations Act (“LMRA”). Section 301 provides 9 federal jurisdiction in “[s]uits for violation of contracts between an employer and a labor 10 organization representing employees in an industry affecting commerce.” 29 U.S.C. § 185(a). 11 This case, however, does not implicate a contract between Trustees and Pro-Cut but is “rather 12 simply an attempt to collect on a judgment obtained in a separate lawsuit.” (Order 5:2–4, ECF 13 No. 70). Accordingly, Trustees’ Motion to Reconsider is denied. 14 IV. 15 16 17 CONCLUSION IT IS HEREBY ORDERED that Trustees’ Motion for Reconsideration, (ECF No. 71), is DENIED. 31 DATED this _____ day of January, 2017. 18 19 20 ___________________________________ Gloria M. Navarro, Chief Judge United States District Judge 21 22 23 24 25 Page 3 of 3

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