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Mike Avila Trustee v. Bronger Masonry, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

August 12, 2015

MIKE AVILA TRUSTEE, BRICKLAYERS OF INDIANA RETIREMENT FUND AND BRICKLAYERS OF INDIANA HEALTH AND WELFARE FUND, STEVEN KNOWLES TRUSTEE (substituted 10/3/2014), Plaintiffs,
v.
BRONGER MASONRY, INC., an Indiana for profit domestic corporation, MASONRY SERVICES, INC., an Indiana for profit domestic corporation, Defendants. MASONRY SERVICES, INC., an Indiana for profit domestic corporation, Counter Claimant,
v.
BRICKLAYERS OF INDIANA RETIREMENT FUND AND BRICKLAYERS OF INDIANA HEALTH AND WELFARE FUND, Counter Defendant

Page 1089

          For MIKE AVILA, TRUSTEE, BRICKLAYERS OF INDIANA RETIREMENT FUND AND, BRICKLAYERS OF INDIANA HEALTH AND WELFARE FUND, Plaintiffs: Donald D. Schwartz, ARNOLD & KADJAN, Chicago, IL.

         For BRONGER MASONRY, INC., an Indiana for profit domestic corporation, Defendant: Michael L. Einterz, Jr., Michael L. Einterz, Sr., EINTERZ & EINTERZ, Zionsville, IN.

         For MASONRY SERVICES, INC., an Indiana for profit domestic corporation, Defendant: Patrick C. Badell, BADELL & WILSON, Rushville, IN.

Page 1090

         ORDER DENYING PLAINTIFFS' MOTION FOR INJUNCTIVE RELIEF

         Hon. Jane Magnus-Stinson, United States District Judge.

         Presently pending before the Court is Plaintiffs' Motion for Temporary Restraining Order. [Filing No. 118.] Plaintiffs (" Plaintiffs" or the " Funds" ) are various funds established pursuant to collective bargaining agreements previously entered into between bricklayers and the International Union of Bricklayers & Allied Craftsman Local 4 of IN & KY (the " Union" ). [Filing No. 158 at 2.] Plaintiffs allege that Defendant Bronger Masonry, Inc. (" Bronger" ) has evaded its contractual obligation to pay the Funds by forming an alter ego corporation, Defendant Masonry Services, Inc. (" Masonry" ). [Filing No. 158.]

         In response to questions the Court submitted to the parties before the hearing on the pending motion, Plaintiffs clarified that they are actually seeking a preliminary injunction against Masonry, not a temporary restraining order as initially requested. [Filing No. 151 at 2.] Plaintiffs recognize that this " is not a trial on the merits" and have amended their requested relief to eliminate a claim for past damages and to seek prospective relief in the form of money damages from Masonry beginning on the date of any injunction. [Filing No. 164 at 15.] Masonry opposed Plaintiffs' request, both in a brief in opposition and at the hearing. [Filing No. 147.] Bronger did not respond to Plaintiffs' motion or appear at the hearing, and its counsel has since been granted leave to withdraw. [Filing No. 161.]

         For the reasons that follow, the Court denies Plaintiffs' request for injunctive relief against Masonry. While Plaintiffs have shown a likelihood that they will succeed on the merits of their claim, they have not shown that there is no adequate remedy at law or that they will suffer irreparable harm if their requested injunction is denied. Because they have not met a threshold requirement for obtaining injunctive relief, Plaintiffs' request must be denied.

         I.

         Applicable Standard

         " To obtain a preliminary injunction, the moving party must show that its case has 'some likelihood of success on the merits' and that it has 'no adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied.'" Stuller, Inc. v. Steak N Shake Enters., Inc., 695 F.3d 676, 678 (7th Cir. 2012) (quoting Ezell v. City of Chi., 651 F.3d 684, 694 (7th Cir. 2011)). " If the moving party meets these threshold requirements, the district court 'must consider the irreparable harm that the nonmoving party will suffer if preliminary relief is granted, balancing such harm against the irreparable harm the moving party will suffer if relief is denied.'" Stuller, 695 F.3d at 678 (quoting Ty, Inc. v. Jones Grp., Inc., 237 F.3d 891, 895 (7th Cir. 2001)). " The district court must also consider the public

Page 1091

interest in granting or denying an injunction." Stuller, 695 F.3d at 678.

         " A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). " Preliminary relief is properly sought only to avert irreparable harm to the moving party." Chicago United Indus., Ltd. v. City of Chicago, 445 F.3d 940, 944 (7th Cir. 2006). Because the merits of the underlying litigation are not at issue at this stage, " 'the reluctance to disturb the status quo prior to trial on the merits is an expression of judicial humility . . . [that] enables the court to stay relatively neutral in the underlying legal dispute.'" Id. at 945-46 (quoting O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1012 (10th Cir. 2004)).

         II.

         Procedural History

         On June 4, 2014, Plaintiffs filed this action against Defendants Masonry and Bronger pursuant to the Employee Retirement Income Security Act of 1974 (" ERISA" ). [Filing No. 1 (citing 29 U.S.C. § 1132).] Plaintiffs allege that Bronger is an Indiana for-profit corporation that entered into successive collective bargaining agreements that require Bronger to make periodic contributions to the Funds on behalf of Bronger's bargaining-unit employees. [Filing No. 158 at 2.] Plaintiffs allege that Masonry is the successor of Bronger and, under an alter ego theory, Masonry's employees should be considered Bronger's bargaining unit employees. Plaintiffs thus assert that Masonry is liable for unpaid benefits that it/Bronger did not pay the Funds on behalf of those employees. [Filing No. 158 at 3.]

         On May 6, 2015, Plaintiffs moved for injunctive relief. [Filing No. 118.] Masonry opposed Plaintiffs' request, [Filing No. 147], and the Court held an evidentiary hearing on June 1, 2015, [Filing No. 157]. At the evidentiary hearing, Plaintiffs clarified that they request a preliminary injunction and seek prospective relief only. Plaintiffs ask the Court to order Masonry to pay the benefits they claim the Funds are due from the date of the requested preliminary injunction forward. [Filing No. 164 at 14-17.] The parties submitted their proposed findings of fact and conclusions of law after the hearing. [Filing No. 174; Filing No. 178.] The Court has reviewed those submissions, and now makes the following findings and conclusions thereon.

         III.

         Summary of Relevant Evidence

         The following witnesses testified at the evidentiary hearing on Plaintiffs' request for injunctive relief: Cathy Fulks; Harold Sattison; Sonia Bittle; Rebecca Lambert; Steven Wagner; Ted Champ; Mark Carver; Nickolas Cook; Peter Cook; Jeremy Bills; Jeff Welty; Showne Bleu McKinney; and Dwayne Bronger. The following exhibits were admitted, without objection unless noted: 22; 48; 70; 56 (Bates stamped 3374-3526); 51 (Bates stamped 2835-2837); 10; 73; 11; 12; 26; 27; 28; 29; 42; 43; 44; 30; 31; 32; 33; 8; 9; 14; 15; 13; 45; 23 (amended to include Volume III as a continuation of the exhibit); 52; 40; 72; 41; 37 (over objection); 38; 39; 66; 68; 71; 69 (judicial notice); and 67 (judicial notice). The Court will only summarize the evidence that is material to its ruling on Plaintiffs' request for injunctive relief. [1]

Page 1092

          The Court makes the following findings for purposes of the pending motion only. Nothing herein should be read to apply to the merits of Plaintiffs' Motion for Summary Judgment, [Filing No. 169], which Plaintiffs filed while their request for injunctive relief was pending. Of course that motion must be reviewed under the familiar standard of review, where all reasonable inferences are afforded to the non-movant, Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008), and the Court is unable to make credibility determinations, O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011).

         A. The Parties

         Bronger was incorporated on March 5, 2002, by Dwayne Bronger to perform commercial masonry and construction work. [Filing No. 164 at 279 (referencing Exhibit 41).] Mr. Bronger was the President of Bronger and " performed everything at some point in time" for the company. [Filing No. 164 at 292.]

         Effective March 5, 2002, Bronger entered into a Memorandum of Agreement (the " Agreement" ) with the Union, in which Bronger recognized the Union as the sole and exclusive collective bargaining representative for Bronger's employees. [Filing No. 119-1 at 2.] Bronger agreed to be bound by the terms and conditions of the Agreement unless it served written notice of termination pursuant to the Agreement, [Filing No. 119-1 at 2], which it has not done, [Filing No. 151 at 7; Filing No. 164 at 283]. The Agreement binds Bronger to a Statewide Uniform Agreement (" Statewide Agreement" ) entered into by the Union.[2] [Filing No. 119-2; Filing No. 164 at 141.] The Union contends that because Bronger signed the Agreement, all of Bronger's employees have benefits paid to the Funds pursuant to the Statewide Agreement regardless of whether the employees are members of the Union. [Filing No. 164 at 142-43.] Bronger made contributions to the Funds pursuant to the Agreement and the Statewide Agreement from 2002 to October 2014. [Filing No. 164 at 297.]

         Masonry was incorporated on November 13, 2012. [Filing No. 164 at 245 (referencing Exhibit 40).] Showne B. McKinney is listed as the incorporator on Masonry's Certificate of Incorporation. [Exhibit 40.] Bronger and Masonry perform the same type of work. [Filing No. 164 at 248.] Mr. McKinney does not consider Bronger and Masonry to be competitors, however, because Bronger is a union company and Masonry is a non-union company. [Filing No. 164 at 248.] At issue in this litigation is whether Masonry is the alter ego of ...


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