Kudela et al

Filing 36

Opinion and Order. Plaintiffs' Motion for Partial Summary Judgment (Related doc # 32 ) is granted. Judge Christopher A. Boyko on 1/23/2013. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

KENNETH C. KUDELA, et al.,
Plaintiffs,
vs.
JAMES J. KOCON, et al.,
Defendants.

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CASE NO. 1:10CV999
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Motion (ECF DKT #32) of Plaintiffs for
Partial Summary Judgment. For the following reasons, the Motion is granted
I. FACTUAL BACKGROUND
On May 4, 2010, the above-captioned case was filed by Kenneth C. Kudela, et al.,
Trustees of Bricklayers and Masons’ Local Union No.5 Funds (“Trustees”), to enforce the
obligation to make contributions, satisfy delinquencies, and pay liquidated damages plus
interest under the 2005 Collective Bargaining Agreement (“CBA”), for the period from
November 1, 2009 going forward, against James J. Kocon, Kocon Masonry LLC, Jim Kocon
Construction, Inc., and Jim Kocon Masonry Inc. At ¶ 15 of the instant Complaint, the

Trustees allege:
Jim Kocon Construction, Inc., Jim Kocon Masonry Inc., and James J. Kocon
are “alter egos” of Kocon Masonry LLC as set forth under ERISA, 29 U.S.C.
1145 et seq. and are liable for contributions otherwise imposed upon Kocon
Masonry LLC.
Defendant James J. Kocon filed his Answer, Counterclaims and Third-Party Complaint on
May 27, 2010. (ECF DKT #4). He asserts, as affirmative defenses, that he rejected any
executory contract with the Trustees, and was discharged from any liability to the Trustees, in
his Chapter 7 Bankruptcy Case No. 09-19921, filed on October 20, 2009. His Counterclaims
allege violations of the discharge injunction in 11 U.S.C. § 727 of the Bankruptcy Code. On
September 13, 2010, Defendant James J. Kocon moved for summary judgment in his favor,
arguing that the Trustees’ claims are barred by his bankruptcy discharge. On August 29,
2011, the Court issued an Opinion and Order, denying Kocon’s Motion for Summary
Judgment.
On April 11, 2012, Plaintiff Trustees filed this Motion for Partial Summary Judgment,
“focused solely on the question of liability of Defendant James J. Kocon predicated upon the
ERISA alter ego doctrine, whereby James Kocon is bound legally, in the time period at issue
in this action, for the reporting and contributions of the corporation that was signatory to the
applicable collective bargaining agreement to the various benefit funds and trusts associated
with Bricklayers No.5, Ohio.” (ECF DKT #32, p.1). Defendant’s Brief in Opposition (ECF
DKT #33) was filed on April 27, 2012. Plaintiffs’ Reply Brief (ECF DKT #34) was filed on
May 7, 2012. Defendant filed a Brief in Response to Plaintiffs’ Reply (ECF DKT #35),
without leave of Court, on May 10, 2012.

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II. LAW AND ANALYSIS
Civil Rule 56 Standard
A summary judgment shall be granted only 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). The burden is on the moving party to conclusively show no
genuine issue of material fact exists, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Lansing Dairy. Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.1994). The moving party must do so
by either pointing to "particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations,
admissions, interrogatory answers, or other materials” or by “showing that the materials cited
(by the adverse party ) do not establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P.
56(c)(1)(A), (B). A court considering a motion for summary judgment must view the facts
and all inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the movant presents evidence to
meet its burden, the nonmoving party may not rest on its pleadings, but must come forward
with some significant probative evidence to support its claim. Celotex, 477 U.S. at 324;
Lansing Dairy, 39 F.3d at 1347.
This Court does not have the responsibility to search the record sua sponte for genuine
issues of material fact. Betkerur v. Aultman Hospital Ass 'n., 78 F.3d 1079, 1087 (6th Cir.
1996); Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404-06 (6th Cir.1992). The
burden falls upon the nonmoving party to “designate specific facts or evidence in dispute,”
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Bias v. Advantage, 905 F.2d 1558, 1563 (D.C. Cir.1990); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986); and if the nonmoving party fails to make the necessary showing
on an element upon which it has the burden of proof, the moving party is entitled to summary
judgment. Celotex, 477 U.S. at 323. Whether summary judgment is appropriate depends
upon “whether the evidence presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a matter of law.” Amway
Distributors Benefits Ass 'n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir.2003)(quoting
Anderson, 477 U.S. at 251-52).
Law-of-the-case doctrine
“Under the law-of-the-case doctrine, findings made at one point in the litigation
become the law of the case for subsequent stages of that same litigation. See United States v.
Moored, 38 F.3d 1419, 1421 (6th Cir.1994).” Rouse v. DaimlerChrysler Corporation UAW,
300 F.3d 711, 715 (6th Cir.2002). “Issues decided at an early stage of the litigation, either
explicitly or by necessary inference from the disposition, constitute the law of the case.”
Hanover Ins. Co. v. American Eng’g Co., 105 F.3d 306, 312 (6th Cir.1997) (quoting Coal
Resources, Inc. v. Gulf & Western Ind., 865 F.2d 761, 766, opinion amended on denial of
reh’g, 877 F.2d 5 (6th Cir. 1989)). The doctrine involves reconsideration of an issue the court
already decided in the same proceedings. Gillig v. Advanced Cardiovascular Sys., Inc., 67
F.3d 586, 589 (6th Cir. 1995). However, it is “directed to a court’s common sense” and is not
meant to be an “inexorable command.” Hanover, 105 F.3d at 312 (citing Petition of U.S.
Steel Corp., 479 F.2d 489, 494 (6th Cir.1973)). “It is within the sole discretion of a court to
determine if a prior ruling should be reconsidered.” United States v. Todd, 920 F.2d 399, 403
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(6th Cir.1990). As a general rule, courts will decline to reconsider a previously determined
issue, except:
(1) where substantially different evidence is raised on subsequent trial; (2)
where a subsequent contrary view of the law is decided by the controlling
authority; or (3) where a decision is clearly erroneous and would work a
manifest injustice.” Westside Mothers v. Olszewski, 454 F.3d 532, 538 (6th
Cir.2006) (citing Hanover, 105 F.3d at 312).

In their Motion for Partial Summary Judgment, the Trustees contend that Kocon, in his
individual and personal capacity, is obligated to report and make contributions under the
CBA, by application of the ERISA alter ego doctrine. “The alter ego doctrine was developed
to prevent employers from evading obligations under the Act merely by changing or altering
their corporate form.” Yolton v. El Paso Tennessee Pipeline Co., 435 F.3d 571, 585-587 (6th
Cir.2006) (citing Howard Johnson Co. v. Detroit Local Joint Executive Board, 417 U.S. 249,
259 (1974) and NLRB v. Fullerton Transfer & Storage Limited, Inc., 910 F.2d 331, 336 (6th
Cir.1990)). Referencing deposition testimony of Tanya and James Kocon, the Trustees argue
that the evidence demonstrates substantially identical business purposes for Kocon and the
original signatory to the CBA, Kocon Masonry LLC. Further, the Trustees provide evidence
revealing that Kocon and Kocon Masonry LLC share common operations, common
equipment, common customers, common management, common financial control, common
financial institutions, common jobsites, common ownership, and identical office locations.
The Trustees, therefore, ask the Court to find that Kocon is a “disguised continuation of the
old employer,” who should be prohibited from avoiding his CBA Trust Fund obligations.
In his Opposition, (and in his Brief in Response to Plaintiffs’ Reply, which the Court is

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not bound to consider), Kocon argues that the Trustees’ claims are barred by the discharge
injunction, provided in the U.S. Bankruptcy Code, 11 U.S.C. § 524. Kocon filed a Voluntary
Petition for Chapter 7 Bankruptcy on October 20, 2009, and received a discharge on January
25, 2010. Kocon insists that the Trustees’ claims rely upon pre-bankruptcy behavior, and
were existing claims on the date of his bankruptcy filing. He contends that any right to
payment which arises prior to the bankruptcy constitutes a pre-petition debt. Thus, Kocon’s
January, 2010 bankruptcy discharge, pursuant to 11 U.S.C. § 524, operates to stay any attempt
to hold him personally liable for contributions under the 2005 CBA. The Court notes that
Kocon based his September 13, 2010 Motion for Summary Judgment, in great measure, on the
same legal argument.
The Court is constrained to quote its earlier decision, of August 29, 2011, denying
Kocon’s Motion for Summary Judgment, which remains unchallenged by any party.
Therefore, the Court finds there was no executory contract listed for the
Trustee to assume or reject (or that could be automatically deemed rejected)
under 11 U.S.C. § 365. By not designating any claim on behalf of the Trustees
as contingent, Kocon did not provide the Trustees with notice such as would
trigger their obligation to object to dischargeability. The Trustees admittedly
did not oppose Kocon’s discharge from the 2009 judgment debt. The claims
asserted in the above-captioned Complaint are to enforce the alleged personal
obligation of James J. Kocon to make contributions, satisfy delinquencies, and
pay liquidated damages plus interest under the CBA, for the period from
November 1, 2009 going forward. As such, they were not discharged; the
purported executory contract was not rejected; and the Trustees are not
enjoined from pursuing enforcement of the 2005 CBA.
(ECF DKT #23, p.8).
This Court clearly determined that the Trustees’ claims in the within Complaint, for
obligations against Kocon individually, under the CBA for the period from November 1, 2009
going forward, were not discharged. Moreover, the Court’s Opinion held that the Trustees
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were not barred by the Bankruptcy Code’s discharge injunction. Applying the law-of-the-case
doctrine, the Court declines to reconsider its previous ruling. Kocon has not offered
substantially different evidence; has not provided contrary law decided by a controlling
authority; and has not convinced the Court that its prior decision was clearly erroneous and
would work a manifest injustice.
III. CONCLUSION
For the foregoing reasons, the Motion (ECF DKT #32) of Plaintiffs for Partial
Summary Judgment is granted; and Defendant, James J. Kocon is liable for the contributions
and delinquencies owed by the signatory, Kocon Masonry LLC, to the Trustees of Bricklayers
and Masons’ Local Union No.5 Funds, pursuant to the CBA for the period of November 2009
through October 2011 inclusive. By separate Order, the Court will set a conference to discuss
further proceedings and schedule remaining dates in the captioned matter.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: January 23, 2013

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