Braun v. Ultimate Jetcharters, Inc. et al

Filing 185

Memorandum Opinion: Plaintiff's motion to amend (Doc. No. 171 ) is granted in part. The Court shall file an amended final judgment that provides that judgment is against Ultimate Jetcharters, LLC. Judge Sara Lioi on 3/31/2015. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CARRIE BRAUN,
PLAINTIFF,
vs.

ULTIMATE JETCHARTERS, INC.,
DEFENDANT.

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CASE NO. 5:12-cv-1635
JUDGE SARA LIOI

MEMORANDUM OPINION

After a five-day trial, the jury returned a verdict in favor of plaintiff Carrie
Braun (“plaintiff” or “Braun”) on her state law retaliation claim, and awarded plaintiff
compensatory damages of $70,250.00 and punitive damages of $100,000.00. (Doc. No.
105.) The Court subsequently awarded plaintiff $97,393.75 in attorney’s fees. (Doc. No.
163 [“July 30, 2014 Mem. Op. and Order”] at 3016.)1 The Court entered final judgment
in favor of plaintiff, in accordance with the jury’s verdict and the Court’s award of
attorney’s fees, on July 30, 2014. (Doc. No. 164 [“Final J.E.”].)
When plaintiff’s counsel attempted to collect the judgment from defendant
Ultimate Jetcharters, Inc., counsel was informed that Ultimate Jetcharters, Inc. “was
closed and is out of business without assets.” (Doc. No. 171-1 [“Email Letter”].)
Plaintiff’s counsel was further advised that Ultimate Jetcharters, Inc. “was the operating
company owned by the investors from whom Ultimate Jet, LLC, (the holding company

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All page numbers are to the page identification number generated by the Court’s electronic docketing
system.

which owns Ultimate Jetcharters, LLC) purchased the assets of Ultimate Jetcharters, Inc.
several years ago.” (Id.) It seemed, therefore, that plaintiff had never been employed by
Ultimate Jetcharters, Inc., but, instead, had been employed by Ultimate Jetcharters, LLC.2
This revelation prompted plaintiff to file the present motion to amend
judgment. (Doc. No. 171 [“Mot. to Amend”].) Plaintiff explains that her “request is
simple.” (Id. at 3031.) She moves the Court to amend its judgment to make it enforceable
against Ultimate Jetcharters, LLC and Ultimate Jet, LLC, “so that [d]efendant cannot
escape judgment due to a convenient shift of assets and dissolution.” (Id.) Ultimate
Jetcharters, Inc. opposes the motion. (Doc. No. 172 [“Obj.”].) The Court requested legal
authority from the parties before both plaintiff and defendant sought appellate review of
the Court’s final judgment. (Doc. No. 175 [“Pl. Supp. Mem.”]; Doc. No. 176 [“Def.
Supp. Mem.”].) Following a remand from the Sixth Circuit Court of Appeals with
instructions to resolve the present motion to amend judgment, the Court requested and
received information from defendant (Doc. No. 182), to which plaintiff filed a response
(Doc. No. 184). The matter is now fully briefed.
I. BACKGROUND
This action has been the subject of numerous pretrial and post-trial
opinions and orders, including decisions issued on February 19, 2013, July 25, 2013, and
July 30, 2014. (See Doc. Nos. 25, 68, 163.) Familiarity with these rulings is presumed.
For purposes of the present motion, it is sufficient to note that on June 24, 2012, plaintiff
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While insisting that UJC Inc. was judgment proof, counsel indicated in his letter that John Gordon,
Ultimate Jetcharters, LLC’s president and chief executive officer, had authorized him to advise that
Ultimate Jetcharters, LLC “would fund a settlement of the Judgment which you have against Ultimate
Jetcharters, Inc. if we are able to reach an agreement on an amount and terms.” (Email Letter at 3033; see
also Doc. No. 31-1 [“J. Gordon Aff.”] ¶ 1.)
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brought suit in federal court against Ultimate Jetcharters, Inc. and several individuals,
claiming that her employment as a pilot had been marred by sexual harassment and
gender discrimination. In her complaint, she specifically identified Ultimate Jetcharters,
Inc. as her employer, and maintained that Ultimate Jetcharters, Inc. was directly
responsible for violating her federal constitutional and state law rights. (See Doc. No. 1
[“Compl.”] ¶¶ 1, 12, 23, and see generally ¶¶ 29-102.)
On July 16, 2012, defendants filed their answer. (Doc. No. 4 [“Ans.”].) In
addition to offering a general denial of the allegations in the complaint, defendants
represented therein that “UJC [Inc.] was initially a corporation as alleged in paragraph #3
[of the complaint], but was converted to a limited liability company on September 28,
2010.” (Ans. ¶ 3.) Based upon this unrefuted representation, it is clear that this change in
legal structure occurred more than six months before plaintiff started her employment as
a pilot. It is also undisputed that plaintiff did not, at any time before the Court entered its
final judgment, attempt to amend the complaint to reflect Ultimate Jetcharters, Inc.’s
change in legal status from a corporation to a limited liability corporation.
Defendants also filed several dispositive motions, including a motion to
dismiss, under Rule 12 of the Federal Rules of Civil Procedure, and a “preliminary”
motion for summary judgment under Rule 56. (Doc. No. 12 [“Mot. to Dismiss”]; Doc.
No. 30 [“MSJ”].) While defendants addressed a variety of legal and factual issues in
these motions, defendants never asserted that plaintiff had sued the wrong entity, that
Ultimate Jetcharters, Inc. ceased to exist more than six months before plaintiff was hired
as a pilot, or that Ultimate Jetcharters, Inc. was no longer a going concern.

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Following rulings on the dispositive motions, the case proceeded to trial
against Ultimate Jetcharters, Inc. on the remaining state law retaliation claim. Among the
defense witnesses offered at trial was John Gordon, president of Ultimate Jetcharters,
LLC. (See Doc. No. 31-1 [“J. Gordon Aff.”] ¶ 1.) In his trial testimony, Mr. Gordon
represented that he was president and CEO of “Ultimate Jetcharters” and that he had
served in this capacity for this organization “[s]ince its origination in 1984.” (Doc. No.
123 [“Aug. 23, 2014 Trial Tr.”] at 2360.) Mr. Gordon also testified that he made the
decision to discharge plaintiff and explained the reasoning that went into that decision.
(Id. at 2409-12.)3
After the jury returned its verdict in favor of plaintiff and awarded her
damages, the parties set about the business of filing post-trial motions. Included in the
defense motions was a motion, pursuant to Rule 62(b), to stay execution of judgment.
(Doc. No. 113 [“Mot. Stay Exec.”].) In support of the motion, Ultimate Jetcharters, Inc.
represented to the Court that it was a going concern by “ask[ing] the Court to set a
nominal bond because it is a local business that has in excess of 90 employees, and there
is not a serious possibility that it will move or liquidate within the time needed . . . for the
Court to consider the post-trial motions.” (Mot. Stay Exec. at 1180.) After the Court
resolved the post-trial motions and entered final judgment in favor of plaintiff, both sides
filed notices of appeal. (Doc. Nos. 165, 168.) On December 18, 2014, the Sixth Circuit
remanded the matter to this Court “for the limited purpose of permitting it to rule on the

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Mr. Gordon further testified that he received input from Dave Parsons, Doug Parsons, Lori Loftis, and
Rod Eby before making the ultimate decision to discharge plaintiff. (Id. at 2410-11.) Each of these
individuals also testified at trial.
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motions to change name/vacate the judgment.” (Doc. No. 181 [“Order of Remand”] at
3124.)
II. LAW AND DISCUSSION
Plaintiff offers a number of bases upon which the Court’s July 30, 2014
final judgment can be amended to provide that it is enforceable against Ultimate
Jetcharters, LLC and Ultimate Jet, LLC, including: Rules 15(b) or 60(a) of the Federal
Rules of Civil Procedure, successor liability, waiver and estoppel, and Rule 3.3 of the
Ohio Rules of Professional Conduct. Because the Court finds that amendment is
appropriate as to Ultimate Jetcharters, LLC under Fed. R. Civ. P. 60(a), it need not
address plaintiff’s alternative avenues for relief.
A.

Rule 60(a) Standard
Rule 60(a) permits a trial court to “correct a clerical mistake or mistake

arising from oversight or omission whenever one is found in a judgment, order, or other
part of the record.” Fed. R. Civ. P. 60(a). The Sixth Circuit has held that while Rule 60(a)
exists as a mechanism by which a trial court may correct a clerical error, it may not be
used to make a substantive change. In re Walter, 282 F.3d 434, 440 (6th Cir. 2002)
(citation omitted). “The basic purpose of the rule is to authorize the court to correct errors
that are mechanical in nature that arise from oversight or omission.” Id. (quoting 11 C.
Wright & A. Miller, Federal Practice and Procedure § 2854, at 240 (2d ed. 1995)).
The “distinction between ‘clerical mistakes’ and mistakes that cannot be
corrected pursuant to Rule 60(a) is that the former consists of ‘blunders in execution’
whereas the latter consists of instances where the court changes its mind. . . .” Hart v.
Lutz, 102 F. App’x 10, 12 (6th Cir. 2004) (quoting Blanton v. Anzalone, 813 F.2d 1574,
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1577, n.2 (9th Cir. 1987)) (emphasis in original) (further citation omitted). “Stated
differently, a court properly acts under Rule 60(a) when it is necessary to ‘correct
mistakes or oversights that cause the judgment to fail to reflect what was intended at the
time of trial.’” In re Walter, 282 F.3d at 440-41 (quoting Vaughter v. E. Air Lines, Inc.,
817 F.2d 685, 689 (11th Cir. 1987)); see Kokomo Tube Co. v. Dayton Equip. Servs. Co.,
123 F.3d 616, 623 (7th Cir. 1997) (“In deciding whether Rule 60(a) applies, we have to
distinguish between changes that implement the result intended by the court at the time
the order was entered and changes that alter the original meaning to correct a legal or
factual error.”) (quotation marks and citation omitted), rev’d on other grounds by
McCarter v. Ret. Plan for Dist. Managers of Am. Family Ins. Grp., 540 F.3d 649, 653
(7th Cir. 2008).
B.

Application of Rule 60(a)
According to plaintiff, Rule 60(a) is available to “correct misnomers in a

judgment where, as here, the identity of the party plaintiff intended to sue is clear from
the record and defended by the appropriate defendant.” (Pl. Supp. Mem. at 3045-46,
collecting cases.) In response, Ultimate Jetcharters, Inc. emphasizes that, when
defendants filed their answer, they put plaintiff on notice that she had “misnamed her
employer and should have amended her [c]omplaint at that time.” (Def. Supp. Mem. at
3105.) It is defendants’ position that plaintiff “may not . . . blame her lack of diligence
prior to trial as a basis for amendment now.” (Id. at 3106.)
A case out of the Second Circuit provides this Court with some guidance.
In Fluoro Elec. Corp. v. Branford Assoc., 489 F.2d 320 (2d Cir. 1973), the court
reviewed a district court’s decision to permit a Rule 60 amendment to the judgment to
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correct the name of the defendant. There, the plaintiff had brought suit against “Branford
Associates, a corporation.” In its answer, the defendant clarified that its proper name was
Branford Developers, Inc. The plaintiff ultimately secured a jury verdict against this
entity, and the district court entered judgment in accordance with the verdict. When the
plaintiff attempted to levy execution of judgment against “Branford Associates, a
corporation,” the bank refused to transmit the funds, noting that it had accounts in the
names of “Branford Associates”, which was a partnership, and “Branford Developers,
Inc.”, which was the corporation defendant identified in its answer. (As it turned out,
“Branford Associates, a corporation” did not exist.)
The district court ultimately granted the plaintiff’s motion to amend the
judgment to reflect that it was against “Branford Associates”, thereby allowing the
plaintiff to levy on the assets of the partnership. Id. at 322. The Second Circuit affirmed,
finding that “the trial court was amply justified in granting the plaintiff’s motion, that the
party now before us as ‘Branford Associates’ was the party defendant at trial, and that
since then it has only persisted in technical manoeuvres by which it might avoid a lawful
judgment rendered against it.” Id. at 324.
While the defendant claimed that its answer put the plaintiff on notice that
a non-existent entity had been sued, the court found that the distinction between the
fictitious corporation and the existing entity “Branford Associates” was unclear from the
record and that the defendant did nothing to correct this confusion, even when the trial
court instructed the jury that “Branford Associates, Inc.” was the defendant and the party
to the contract giving rise to the litigation. Id. at 325. In specifically approving of the
post-judgment amendment, the court also underscored the fact that one of Branford
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Associates’s members was personally served and was the key defense witness, and that
both the nonexistent “Branford Associates, a corporation” and the existing entities shared
the same counsel. Id. at 324. Ultimately, the court concluded that:
[t]o the plaintiff, to the trial judge, and to the jury it was plain that only
one group of men had contracted with the plaintiff, a group known as
Branford Associates. That this group was styled a corporation in the
complaint and thereafter occasionally so referred to did not mean that the
party sought to be charged by the plaintiff was a corporate defendant,
regardless of name. On the contrary, under the circumstances, it is clear
that it was Branford Associates which the plaintiff sought to hold liable,
regardless of its legal status.
Id. at 325.
Though the facts in Fluoro are not on all fours with the facts before this
Court, the message that a judgment can be amended to reflect what occurred at trial still
rings true Here, it is evident from the complaint that plaintiff intended to bring suit
against her former employer, regardless of its legal structure. While defendants noted
plaintiff’s misstep in the answer, they never attempted to correct the record beyond that
(until now) and actually contributed to the impression that plaintiff’s former employer
had been properly named in the complaint. For example, in support of their summary
judgment motion, defendants specifically represented that Ultimate Jetcharters, Inc. had
been plaintiff’s employer. (Doc. No. 31 [“Mem. in Supp. MSJ”] at 220.)4 Likewise, the
parties’ joint submission of stipulated facts provided that Ultimate Jetcharters, Inc. was a

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In connection with their summary judgment motion, defendants used the term “Ultimate Jetcharters” to
refer to Ultimate Jetcharters, Inc.. (See MSJ at 219 [“Ms. Braun filed a complaint against defendants
Ultimate Jetcharters, Inc. (hereinafter “Ultimate Jetcharters”)[.]”] Defendants subsequently represented
that, “[o]n or about April 21, 2011, Ultimate Jetcharters hired Ms. Braun as a co-pilot of its airplanes.” (Id.
at 220.)
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going concern and that it had been plaintiff’s employer, both of which defendants now
concede, were untrue. The relevant portion of that stipulation provided:
Ultimate Jetcharters, Inc. (known here as “Ultimate Jetcharters”) was, and
currently is in the business of flying cargo and charter passengers to
various destinations across the United States and internationally, based out
of Akron-Canton Airport. . . On or about April 21, 2011, Ultimate
Jetcharters hired Ms. Braun as a co-pilot of its airplanes. . . On or about
March 12, 2012, Ultimate Jetcharters terminated Ms. Braun’s
employment.
(Doc. No. 61 [“Proposed Final Pre-Trial Or.”] at 637; see also Doc. No. 71 [“Stip. of
Facts”] at 709.) These stipulations—identifying Ultimate Jetcharters, Inc. as plaintiff’s
former employer—were read to the jury at the beginning and the end of the trial. (Doc.
No. 120 [“Aug. 20, 2013 Trial Tr.”] at 1400-01; Aug. 23, 2013 Trial Tr. at 2562-63.)
The parties also filed joint proposed jury instructions that identified
Ultimate Jetcharters, Inc. as plaintiff’s former employer, and these instructions were also
read to the jury. (Doc. No. 94 [“Joint Pr. Jury Inst.”] at 1102.) At trial, Ultimate
Jetcharters, Inc.’s witnesses—mostly current employees of Ultimate Jetcharters, LLC—
did little to clarify the situation testifying, simply, that they were employed by “Ultimate
Jetcharters.” (See, e.g., Doc. No. 121 [“Aug. 21, 2013 Trial Tr.”] at 1803 [Dave Parsons],
1934 [Rodney Eby]; Aug. 23, 2013 Trial Tr. at 2315 [Lori Loftis], 2340 [Sharon Stoffer],
2356 [William Joe McGuire], 2360 [John Gordon].)
It is clear that the plaintiff, the Court, and the jury all believed that
plaintiff had been employed by “Ultimate Jetcharters,” the entity plaintiff sought to hold
responsible for her discharge. That Ultimate Jetcharters, Inc. had been converted to the
limited liability corporation Ultimate Jetcharters, LLC years before this litigation was
commenced was of no consequence to the jury, and in no way changes the fact that the
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jury intended to hold plaintiff’s former employer liable for retaliation, regardless of the
legal structure or status of the entity. Under these circumstances, the correction of the
judgment to provide for liability against Ultimate Jetcharters, LLC does not represent a
substantive change, but, instead, merely reflects what was intended from the inception of
the case. See In re Walter, 282 F.3d at 441 (citation omitted); see, e.g., Dubon v. Delmas
Meat & Fish, No. 09-20298-CIV, 2011 WL 1703179, at *1-*2 (S.D. Fla. Apr. 25, 2011)
(Rule 60(a) could be used to correct misnomer); PacifiCorp Capital, Inc. v. Hansen
Properties, 161 F.R.D. 285, 288 (S.D.N.Y. 1995) (misnomer identifying defendant as a
corporation rather than a partnership could be corrected via Rule 60(a)); see also
Robinson v. Sanctuary Music, 383 F. App’x 54, 57 (2d Cir. 2010) (approving of Rule
60(a) order correcting judgment to reflect defendant’s legal name, noting that “[s]uch a
misnomer may be corrected when plaintiffs did not select the wrong defendant but
committed the lesser sin of mislabeling the right defendant”) (quotation marks and
citation omitted).
In fact, while the complaint purported to sue the no longer existing
corporation of Ultimate Jetcharters, Inc., it is clear that Ultimate Jetcharters, LLC was the
real party in interest and the party that defended this lawsuit. Its president and CEO, John
Gordon, sat at counsel table throughout the trial. He was also a key defense witness, as he
was the individual who made the ultimate decision to discharge plaintiff. Indeed, each
and every individual who participated, in one way or another, in the decision to discharge
plaintiff—all of whom, as it turns out, were employed by Ultimate Jetcharters, LLC—
were defense witnesses at trial. Additionally, it appears that Ultimate Jetcharters, LLC is
represented by McNamara, Demczyk & DeHaven, one of the law firms representing
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Ultimate Jetcharters, Inc.5 (See Email Letter at 3033.) Under these circumstances, to
permit Ultimate Jetcharters, Inc. to roll the dice at trial and then hide behind a change in
corporate structure when it comes time to collect on the judgment would make a mockery
of the Court’s proceedings. Thus, the Court shall amend its final judgment to provide that
it is against Ultimate Jetcharters, LLC.
While the decision to amend the judgment as to Ultimate Jetcharters, LLC
represents a very close call due to plaintiff’s failure to correct the defendant’s name after
being put on notice in the defendants’ answer, the Court finds that the unique facts of the
present case support such an amendment. In fact, had Ultimate Jetcharters, LLC not
repeatedly reinforced the misperception that plaintiff’s employer had been properly
named and had it not been clear that Ultimate Jetcharters, LLC was afforded its day in
court, a very different outcome could have resulted. Indeed, the Court recognizes that a
reviewing court could, even on the present facts, reach a different result. Still, this Court
concludes that the case unfolded in such a way that amendment of the judgment as to
Ultimate Jetcharters, LLC is proper.
The record does not, however, support an amendment to provide for
liability against Ultimate Jetcharters, LLC’s parent corporation, Ultimate Jet, LLC. “A
parent corporation generally is not liable for the acts of its subsidiary, even if its
subsidiary is wholly owned.” Corrigan v. U.S. Steel Corp., 478 F.3d 718, 724 (6th Cir.
2007) (citing, among authorities, United States v. Bestfoods, 524 U.S. 51, 61, 118 S. Ct.
1876, 141 L. Ed. 2d 43 (1998)). “However, in extraordinary cases, such as the corporate

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Lead defense counsel at trial, Sidney Freeman, serves in an “of counsel” capacity with the firm. (See
Email Letter at 3033.)
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form being used for wrongful purposes, courts will pierce the corporate veil and disregard
the corporate entity, treating the parent corporation and its subsidiary as a single entity.”
Id. (citing Bestfoods, 524 U.S. at 62.)
Under Ohio law, a court may pierce the corporate veil of a parent
corporation, and provide that it is liable for the actions of its subsidiary if: (1) the parent
exercised complete control over the subsidiary; (2) that its exercise of control amounted
to fraud; and (3) the plaintiff was injured by such control. Id. (quoting Belvedere
Condominium Unit Owners’ Ass’n v. R.E. Roark Cos., 617 N.E.2d 1075, 1077 (Ohio
1993)) (further citation omitted). As the party seeking to impose liability on the parent
corporation, the burden is on plaintiff to demonstrate grounds to support a piercing of the
corporate veil. LeRoux’s Billyle Supper Club v. Ma, 602 N.E.2d 685, 689 (Ohio Ct. App.
1991).
The record reflects that Ultimate Jet, LLC was formed in 2010, for the
purpose of purchasing Ultimate Jetcharters Acquisition, Inc., the holding company that
owned UJC, Inc. (Doc. No. 182 [“Notice of Filing Aff. of J. Gordon”] at 3125-26.)
Ultimate Jet, LLC’s membership interests are owned by two limited liability
corporations: Wooster Ohio Investments, LLC, owning 91.3% of the ownership interests;
and Minnesota Airventures, LLC, owning 8.7% of the ownership interests. (Id. at 3127.)
While John Gordon owns the largest interest in Wooster Ohio Investments, LLC at
35.22%, eleven other members own interests in this limited liability corporation, and the
two corporations owning Ultimate Jet, LLC have no members in common. (Id.)
Plaintiff has failed to demonstrate that Ultimate Jet, LLC exercised such
complete control over Ultimate Jetcharters, LLC that the subsidiary had “no separate
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mind, will, or existence of its own.” Corrigan, 478 F.3d at 724 (quotation marks and
citation omitted). For example, there is no evidence that corporate formalities have been
ignored, that the parent has held itself out as liable for the subsidiary, or that the
subsidiary was grossly inadequately capitalized or a mere façade for the parent’s
operations. Id. (citing LeRoux’s Billyle, 602 N.E.2d at 689); (see Notice of Filing J.
Gordon Aff. at 3125 [Ultimate Jetcharters, LLC purchase by Ultimate Jet, LLC for
$12,000,000.00].) Absent such evidence, the Court may not pierce the corporate veil and
reach the parent corporation.6
Finally, even though the Court finds that it can amend the judgment to
correct the misnomer as to Ultimate Jetcharters, LLC, it would be remiss if it did not
acknowledge that plaintiff should have, as Ultimate Jetcharters, Inc. suggested, sought to
amend her complaint immediately after defendants filed their answer. Plaintiff was put on
notice early in this litigation that she had misnamed her former employer. In a prior
opinion, the Court reduced plaintiff’s request for attorney’s fees based, in part, on the
inexperience of her trial counsel, and the fact that counsel’s lack of experience had led to
certain questionable decisions in this litigation. (See July 30, 2014 Mem. Op. and Order.)
The present motion to amend highlights another. More seasoned counsel would have
recognized the dangers of misidentifying a party in the pleadings and taken immediate
corrective action. Had the circumstances been otherwise, counsel’s delay in seeking to
amend could have negated years of litigation, and might have left their client with a time6

The only evidence plaintiff offers with respect to Ultimate Jet LLC demonstrates that this corporation
identified John Gordon as its statutory agent. (Doc. No. 184-4 [Corporate Details filed with Ohio Secretary
of State] at 3172.) This fact, alone, does not warrant piercing the corporate veil.

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barred retaliation claim.
III. CONCLUSION
For all of the foregoing reasons, plaintiff’s motion to amend (Doc. No.
171) is GRANTED IN PART. The Court shall file an amended final judgment that
provides that judgment is against Ultimate Jetcharters, LLC.
IT IS SO ORDERED.

Dated: March 31, 2015
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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