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Mark McCleskey Trustee v. CWG Plastering, LLC

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

April 19, 2017

MARK MCCLESKEY TRUSTEE, INDIANA STATE COUNCIL OF PLASTERERS AND CEMENT MASONS HEALTH AND WELFARE AND PENSION FUNDS, Plaintiffs,
v.
CWG PLASTERING, LLC, a Missouri Limited Liability Company, Defendant.

          ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          LARRY J. McKINNEY, JUDGE United States District Court

         This matter is before the Court on Plaintiffs' Mark McCleskey Trustee, Indiana State Council of Plasterers and Cement Masons Health and Welfare and Pension Funds (collectively the “Funds”) and Defendant's CWG Plastering, LLC (“CWG”) Cross-Motions for Summary Judgment. Dkts. 56, 58. The Funds allege in their First Amended Complaint that CWG is responsible for the debt owed to them by Walter Gianino d/b/a Gianino Plastering (“Gianino Plastering”) under theories of successor liability and the alter ego doctrine. Dkt. 20. Gianino Plastering entered into a collective bargaining agreement that required it to make payments to the Funds, but it later became delinquent on payments. The Funds sued for the money owed under the agreement and received a default judgment against Gianino Plastering in the amount of $196, 940.73, which remains unsatisfied. See McCleskey v. Gianino, 1:11-cv-00791-JMS-DKL, Dkt. 33. Following the default judgment, Gianino Plastering went out of business and Walter Gianino's son, Curt Gianino, started a separate plastering business, CWG. The Funds allege that CWG is a successor to Gianino Plastering and therefore responsible for the judgment levied against it.

         Because the undisputed facts demonstrate that CWG is neither the alter ego of Gianino Plastering nor liable as its successor, the Funds' motion for summary judgment is DENIED and CWG's motion for summary judgment is GRANTED.

         I. BACKGROUND[1]

         Although the parties disagree on some minor details, after a review of the parties' statements of undisputed material facts, as well as the attached records, the substantive facts in this matter are not in dispute.

         A. GIANINO PLASTERING

         Walter Gianino (“Walter”) established Gianino Plastering in the metropolitan St. Louis area in 1979. Dkt. 64, ¶¶ 1-2. Walter's son, Curt, joined Gianino Plastering around 1994 as a plasterer. Id., ¶¶ 3-4. Gianino Plastering entered a union agreement with Plasterers Local 3 in St. Louis, Missouri, beginning in October 2000. Id., ¶ 6. Walter signed a Memorandum of Agreement and Collective Bargaining Agreement (“CBA”) with Plasterers Local 3 on February 9, 2009. Id., ¶ 7. Pursuant to the CBA, signatory employers must pay benefits to the Funds for each hour worked by plasterer employees covered by the union agreement. Dkt. 57, ¶ 17.

         Gianino Plastering became delinquent in his benefit contributions to the Funds, which led to the Funds filing a lawsuit. Dkt. 64, ¶ 28; See McCleskey v. Gianino, 1:11-cv- 00791-JMS-DKL. On July 27, 2012, Magistrate Judge LaRue recommended a default judgment in favor of the Funds and against Gianino Plastering in the amount of $196, 740.73. McCelskey v. Gianino 1:11-cv-00791-JMS-DKL, Dkt. 31. On August 14, 2012, Chief Judge Magnus-Stinson adopted this recommendation and entered judgment on behalf of the Fund. Id., Dkts. 32, 33. The prior judgment against Gianino Plastering remains unpaid. Dkt. 64, ¶ 30. Following the initial recommendation for judgment on behalf of the FundS at the end of July 2012, Walter ceased operations at Gianino Plastering. Id., ¶ 35.

         Following the closure of Gianino Plastering, Walter incorporated under a different name, Gianino and Son, in part to allow him to collect on outstanding receivables owed to Gianino Plastering. Id., ¶ 122. Gianino and Son, however, did not perform any plastering work or receive any money. Id.

         B. CWG

         CWG was formed on August 14, 2012, as a Missouri limited liability company that performs plastering work in St. Louis. Id., ¶¶ 9-10, 12. Curt Gianino is the owner and sole member of CWG. Id., ¶ 11. Curt initially invested $5, 500.00 to capitalize CWG in August 2012. Id., ¶ 77. Curt is also the only person who shares in the profits and losses of CWG. Dkt. 66, ¶ 32. CWG leased two vehicles from a third party that were previously used by Gianino Plastering. Dkt. 57, Ex. BB, Deposition of Curt Gianino (“Q. When did your company first begin using the two Fords? A. When I first came in business and started my company, Mr. Brand came to me and said I could use the vehicles with a fee as long as I had insurance on them.”). CWG acquired no equipment from Gianino Plastering and purchased its own professional equipment from third-party vendors at commercial prices. Dkt. 61-1, ¶ 14.

         James Gildehaus worked for Gianino Plastering from 2005 until at least the end of July 2012. Dkt. 64, ¶ 50. Gildehaus began working for CWG in August 2012 and received his first CWG paycheck on August 17, 2012. Id., ¶ 49. Gildehaus' last Gianino Plastering paycheck was dated August 10, 2012. Id., ¶ 50. Gildehaus performed as an unskilled laborer for Gianino Plastering, but was trained to do plastering work for CWG by Curt following CWG's formation. Dkt. 61-1, ¶ 24. When asked why he stopped working for Gianino Plastering, Gildehaus recalled a conversation wherein Curt stated, “Hey, [Walter]'s being sued and I'm starting my own company now and [Walter]'s no longer in the picture.” Dkt. 64, ¶ 95.

         Dan Giger was employed by Gianino Plastering for at least two years before Walter closed the business. Id., ¶ 27. Giger received his last paycheck from Gianino Plastering on August 10, 2012. Id., ¶ 53. Giger started working for CWG in August 2012, and received his first CWG paycheck on August 24, 2012. Id., ¶¶ 52, 54.

         Curt received his last paycheck from Gianino Plastering on August 10, 2012, and his first CWG paycheck on August 17, 2012. Id., ¶¶ 55-56. In 2012, the only persons on CWG's payroll were Curt, Giger, and Gildehaus. Id., ¶ 110.

         Walter began receiving pay from CWG in August 2013. Id., ¶ 11. Walter has not contributed to the finances of CWG. Dkt. 61-1, ¶ 13. Walter does no hiring or supervision of CWG employees and receives no income from CWG, except payment for hours worked at an hourly rate. Id., ...


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