United States District Court, S.D. Indiana, Indianapolis Division
MIKE AVILA TRUSTEE, BRICKLAYERS OF INDIANA RETIREMENT FUND AND BRICKLAYERS OF INDIANA HEALTH AND WELFARE FUND, STEVEN KNOWLES TRUSTEE (substituted 10/3/2014), Plaintiffs,
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,
BRICKLAYERS OF INDIANA RETIREMENT FUND AND BRICKLAYERS OF INDIANA HEALTH AND WELFARE FUND, Counter Defendant
MIKE AVILA, TRUSTEE, BRICKLAYERS OF INDIANA RETIREMENT FUND
AND, BRICKLAYERS OF INDIANA HEALTH AND WELFARE FUND,
Plaintiffs: Donald D. Schwartz, ARNOLD & KADJAN, Chicago, IL.
BRONGER MASONRY, INC., an Indiana for profit domestic
corporation, Defendant: Michael L. Einterz, Jr., Michael L.
Einterz, Sr., EINTERZ & EINTERZ, Zionsville, IN.
MASONRY SERVICES, INC., an Indiana for profit domestic
corporation, Defendant: Patrick C. Badell, BADELL & WILSON,
DENYING PLAINTIFFS' MOTION FOR INJUNCTIVE RELIEF
Jane Magnus-Stinson, United States District Judge.
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.]
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.
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.
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
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)).
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.]
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.
of Relevant Evidence
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.
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).
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.]
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. [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.]
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 ...