Board of Trustees of the Construction Industry and Laborers Health and Welfare Trust et al v. Bruns-Witt et al

Filing 41

ORDER Denying without Prejudice 15 Motion to Dismiss. Signed by Judge Miranda M. Du on 6/15/2015. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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

ORDER

Plaintiffs,

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Case No. 2:14-cv-01087-MMD-PAL

v.
EVELYN BRUNS-WIT, et al.,

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Defendants.

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I.

SUMMARY

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After reviewing the filings in this case and in Trustees of the Construction

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Industry and Laborers Health and Welfare Trust, et al. v. Pro-Cut LLC, Case No. 2:12-

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cv-00205-GMN-VCF (“Pro-Cut”), the Court will temporarily stay this action in the interest

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of judicial economy pending the resolution of a Rule 60(b)(4) motion to set aside the

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judgment in the Pro-Cut case (dkt. no. 57).

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II.

BACKGROUND

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This case arises from a series of lawsuits filed by Plaintiffs to collect unpaid

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contributions owed to them by B. Witt Concrete Cutting, Inc. (“B. Witt”) under a

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collective bargaining agreement (“CBA”). On May 24, 2010, Plaintiffs obtained an

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Amended Judgment in their favor and against B. Witt for delinquent contributions under

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the CBA. (Dkt. nos. 7 at 3, 15-1.) B. Witt defaulted under the Amended Judgment. (Dkt.

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no. 15 at 4.)

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On February 8, 2012, Plaintiffs filed the Pro-Cut case, alleging that Pro-Cut was

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liable for B. Witt’s delinquent contributions under an alter ego theory. (Dkt. no. 7 at 3.)

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The court in that case made an alter ego finding and granted summary judgment in

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favor of Plaintiffs (“Pro-Cut Judgment”). (Dkt. no. 15-2.) Pro-Cut subsequently filed a

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Chapter 7 bankruptcy petition. (Dkt. no. 7 at 3.)

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On July 2, 2014, Plaintiffs filed this action, seeking to impose liability against

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Defendants Evelyn Bruns-Witt (“Bruns-Witt”), Bentar Development, Inc. (“Bentar”), CM

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Builders, Forte Specialty Contractors, LLC (“Forte”), and Aegis Security Insurance

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Company (“Aegis”) all premised on the Pro-Cut Judgment. (Dkt. no. 7.)

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On September 11, 2014, Defendant Bentar filed a Motion to Dismiss Plaintiffs’

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First Amended Complaint (“FAC”), arguing that the Pro-Cut Judgment is void and

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unenforceable because the Pro-Cut court lacked subject matter jurisdiction to adjudicate

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that case. (Dkt. no. 15.) Defendants CM Builders, Forte, AEGIS, and Bruns-Witt joined

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the Motion to Dismiss. (Dkt. nos. 16, 21.) Plaintiffs filed an opposition and Defendants

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filed a reply. (Dkt. nos. 22, 25.)

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On January 5, 2015, Plaintiffs and Defendants filed a joint stipulation to stay,

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explaining that Defendants intended to reopen Pro-Cut and file a Rule 60(b) motion to

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set aside the judgment based on lack of subject matter jurisdiction. (Dkt. no. 34.) At the

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Court’s request, the parties filed a joint supplement to clarify that if the Pro-Cut

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Judgment is set aside, there will be no alter ego finding between B. Witt and Pro-Cut

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and, therefore, no basis for the claims in this case. (Dkt. no. 37.) However, because

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Defendants inexplicably had not yet sought to reopen Pro-Cut, the Court denied the

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motion. (Dkt. no. 38.)

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On April 3, 2015, Plaintiffs and Defendants moved to reopen Pro-Cut, which that

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court granted for the limited purpose of addressing a challenge to its subject matter

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jurisdiction. (Case No. 2:12-cv-00205-GMN-VCF, dkt. no. 56.) In Pro-Cut, Defendants

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have filed a Rule 60(b)(4) motion to set aside the judgment based on lack of subject

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matter jurisdiction (“Rule 60(b)(4) Motion”). (Dkt. no. 57.) Defendants represent that
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their Rule 60(b)(4) Motion was “made and based on briefs filed in … Case No. 2:14-CV-

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01087-MMD-PAL,” the case pending before this Court. (Id.) The Rule 60(b)(4) Motion

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has been fully briefed and is now pending a resolution by the Pro-Cut court.

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III.

DISCUSSION

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A district court has discretionary power to stay proceedings in its own court.

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Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936); see also Lockyer v. Mirant Corp.,

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398 F.3d 1098, 1109 (9th Cir. 2005). “A trial court may, with propriety, find it is efficient

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for its own docket and the fairest course for the parties to enter a stay of an action

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before it, pending resolution of independent proceedings which bear upon the case.”

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Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863 (9th Cir. 1979). “When

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considering a motion to stay, the district court should consider three factors: (1)

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potential prejudice to the non-moving party; (2) hardship and inequity to the moving

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party if the action is not stayed; and (3) the judicial resources that would be saved by

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avoiding duplicative litigation if the cases are in fact consolidated.” Pate v. Depuy

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Orthopaedics, Inc., No. 2:12-cv-01168-MMD-CWH, 2012 WL 3532780, at *2 (D. Nev.

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Aug. 14, 2012) (quoting Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal.

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1997) (internal quotation marks omitted).

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After reviewing the filings, the Court concludes that this case should be stayed

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pending the resolution of Defendants’ Rule 60(b)(4) Motion in Pro-Cut. (Case No. 2:12-

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cv-00205-GMN-VCF, dkt. no. 57.) The Pro-Cut court reopened Pro-Cut to review

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whether that court has subject matter jurisdiction to adjudicate the case, which is an

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issue more appropriately raised in a Rule 60(b)(4) motion. Because the same issue —

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whether to set aside the Pro-Cut Judgment based on lack of subject matter jurisdiction

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— is raised in Pro-Cut and in this case, staying this case will avoid potentially

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inconsistent outcomes. Furthermore, because the Rule 60(b)(4) Motion is determinative

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of Plaintiffs’ claims in this case, forcing the parties to proceed with discovery could result

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in unnecessary expenses and a waste of the parties and the Court’s time and

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resources.
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Accordingly, the Court finds a temporary stay of this action pending the decision

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in Pro-Cut is warranted.

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IV.

CONCLUSION

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It is therefore ordered that this case is temporarily stayed pending resolution of

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Defendants’ Rule 60(b)(4) Motion in Trustees of the Construction Industry and Laborers

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Health and Welfare Trust, et al. v. Pro-Cut, LLC, Case No. 2:12-cv-00205-GMN-VCF.

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The parties are directed to file a joint status report within ten (10) days from the date the

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Pro-Cut court issues a decision on the pending Rule 60(4)(b) Motion.

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It is further ordered that Defendants’ Motion to Dismiss First Amended Complaint
(dkt. no. 15) is denied without prejudice.
DATED THIS 15th day of June 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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