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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TRUSTEES OF THE CONSTRUCTION
INDUSTRY AND LABORERS HEALTH
AND WELFARE TRUST, et al.,
Trustees,

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vs.
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PRO-CUT LLC,
Defendant.

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Case No.: 2:12-cv-00205-GMN-VCF
ORDER

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Pending before the Court is Trustees’1 Motion for Reconsideration, (ECF No. 71), of the

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Court’s Order, (ECF No. 70), entered April 26, 2016. Intervenors Evelyn Bruns-Witt, CM

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Builders, Inc., Forte Speciality Contractors, LLC, and Aegis Security Insurance Company

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(collectively “Intervenors”) filed a Response, (ECF No. 74), and Trustees filed Reply, (ECF

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No. 76). For the reasons discussed below, the Court DENIES Trustees’ Motion.

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I.

BACKGROUND
This case centers upon the Trustees’ claims against Defendant Pro-Cut, LLC (“Pro-

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Cut”) for delinquent ERISA contributions owed by its alleged alter ego, B. Witt Concrete

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Cutting, Inc. (“B. Witt”).2 On August 9, 2013, the Court found that Pro-Cut was the alter ego

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of B. Witt. (Order 8:8, ECF No. 40). As a result, the Court granted the Trustees’ motion for

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summary judgment and denied Pro-Cut’s competing motions for summary judgment. (Id. 8:9).

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“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.
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Pro-Cut declared bankruptcy on January 22, 2014. (See Notice of Bankruptcy 1:23, ECF No. 50).

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Accordingly, the Clerk of Court entered judgment in favor of the Trustees that same day.

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(Clerk’s J., ECF No. 41).

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On April 15, 2015, the Court granted the parties’ stipulated motion to reopen this case

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for the limited purpose of reviewing subject matter jurisdiction. (Order, ECF No. 56). Shortly

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thereafter, Intervenors filed a Motion pursuant to Federal Rule of Civil Procedure 60(b)(4) to

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set aside the Court’s Order granting the Trustees’ Motion for Summary Judgment. (Mot. to Set

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Aside 1:24–25, ECF No. 57). The Court granted Intervenors’ Motion to Set Aside, finding that

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“this case is a ‘garden-variety judgment-enforcement action based on a retroactive alter-ego

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claim.’” (Order 4:15–16, ECF No. 70) (quoting Ellis v. All Steel Const., Inc., 389 F.3d 1031,

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1036 (10th Cir. 2004)). The instant Motion asks the Court to reconsider its Order. (See Mot.

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for Reconsideration, ECF No. 71).

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II.

LEGAL STANDARD

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“[A] motion for reconsideration should not be granted, absent highly unusual

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circumstances.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Reconsideration is

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appropriate where: (1) the court is presented with newly discovered evidence, (2) the court

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committed clear error or the initial decision was manifestly unjust, or (3) if there is an

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intervening change in controlling law. School Dist. No. 1J, Multnomah County v. ACandS, Inc.,

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5 F.3d 1255, 1263 (9th Cir. 1993). However, a motion for reconsideration is not a mechanism

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for rearguing issues presented in the original filings, Backlund v. Barnhart, 778 F.2d 1386,

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1388 (9th Cir. 1985), or “advancing theories of the case that could have been presented earlier,”

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Resolution Trust Corp. v. Holmes, 846 F. Supp. 1310, 1316 (S.D. Tex. 1994). Thus, Rules

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59(e) and 60(b) are not “intended to give an unhappy litigant one additional chance to sway the

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judge.” See Durkin v. Taylor, 444 F. Supp. 879, 889 (E.D. Va. 1977).

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III.

DISCUSSION
Plaintiff requests that the Court “reconsider its Order because Pro-Cut’s direct, ongoing

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liability for Trust Fund contributions presents a federal question and there is, therefore requisite

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arguable basis for jurisdiction.” (Mot. to Reconsider 3:2–4, ECF No. 71). However, the Court

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has reviewed its prior Order and the arguments presented by Trustees and has found no reason

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to overturn its Order. The Court finds neither clear error nor manifest injustice in its reasoning

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that ERISA fails to confer federal jurisdiction over this matter. Further, jurisdiction is not

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proper under § 301 of the Labor Management Relations Act (“LMRA”). Section 301 provides

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federal jurisdiction in “[s]uits for violation of contracts between an employer and a labor

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organization representing employees in an industry affecting commerce.” 29 U.S.C. § 185(a).

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This case, however, does not implicate a contract between Trustees and Pro-Cut but is “rather

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simply an attempt to collect on a judgment obtained in a separate lawsuit.” (Order 5:2–4, ECF

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No. 70). Accordingly, Trustees’ Motion to Reconsider is denied.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that Trustees’ Motion for Reconsideration, (ECF No. 71),

is DENIED.
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DATED this _____ day of January, 2017.

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___________________________________
Gloria M. Navarro, Chief Judge
United States District Judge

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