United States District Court, S.D. Indiana, Indianapolis Division
MARK MCCLESKEY TRUSTEE, INDIANA STATE COUNCIL OF PLASTERERS AND CEMENT MASONS HEALTH AND WELFARE AND PENSION FUNDS, Plaintiffs,
CWG PLASTERING, LLC, a Missouri Limited Liability Company, Defendant.
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
J. McKINNEY, JUDGE United States District Court
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.
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.
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.
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.
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.
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
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.
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,
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,
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.
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.,