The opinion of the court was delivered by: Hon. R. Allan Edgar
Plaintiff United Steelworkers, Local 1-1000 ("USW Local") brings this diversity action against Defendants Forestply Industries, Inc. ("Forestply"), Neil Jorgensen, and Quay Jorgensen seeking enforcement of arbitration awards and judgments obtained pursuant to Canadian law under the Uniform Foreign Country Money Judgments Recognition Act, Mich. Comp. Laws § 691.1131 et seq. ("FCMJRA"). See [Court Doc. No. 1]. The court has already issued an Amended Judgment in favor of Plaintiff against Defendant Forestply for the amount of $213,227.05 plus interest and costs. [Court Doc. No. 39].
Plaintiff now brings a motion for summary judgment against the remaining Defendants Neil Jorgensen and Quay Jorgensen. [Court Doc. No. 52]. Defendant Quay Jorgensen has responded to the motion for summary judgment and asserts that he is also moving for summary judgment; however, he has failed to file a separate motion for summary judgment and has ignored this court's deadline regarding filing such a motion. [Court Doc. Nos. 58, 47]. Therefore, this court will not view his opposition brief as a motion for summary judgment. The Plaintiff's motion is now ripe for this court's review.
Plaintiff's Complaint alleges the following facts, most of which appear to be undisputed by the Defendants. USW Local is a Canadian "trade union" within the meaning of the Labour Relations Act, S.O. 1995 of Ontario, Canada ("Labour Relations Act"). Complaint, ¶ 3. Its principle place of business is in Ontario, Canada. Id. Plaintiff alleges that Forestply was incorporated in Michigan and was located in Chippewa County, Michigan. Id. at ¶ 4. It further alleges that both Neil and Quay Jorgensen were principals in the Forestply organization. Id. at ¶¶ 5-6.
Plaintiff alleges, and Defendants do not appear to disagree, that Forestply and USW Local were parties to a collective bargaining agreement ("CBA") pursuant to the Labour Relations Act with Forestply acting as an "employer" within the meaning of the statute. Complaint, ¶ 11. Pursuant to its rights under the Labour Relations Act, Plaintiff obtained arbitration awards and judgments against Forestply in Ontario, Canada. Id. at ¶¶ 11-14.
The first case brought against Forestply in Canada was Case No. 07-CV-331247. On June 29, 2006 USW Local obtained an arbitration award ordering Forestply to pay one week's worth of wages to twenty-nine employees who had been laid off at Forestply's operations in Ontario, Canada. Complaint, ¶ 15. On March 7, 2007 the arbitrator ordered Forestply to pay a total amount of $15,932. Id. The Ontario Superior Court of Justice entered a judgment against Forestply in the same amount on April 16, 2007 with a 6% interest rate accruing on the amount due as of that date. Id. at ¶ 16. [Court Doc. No. 1-2].
The next judgment obtained against Forestply under Canadian law was issued in Case No. 07-CV-328365. On December 21, 2006 an arbitrator issued an award directing Forestply to pay the amount of $170,174.14 in termination pay and vacation pay owed to bargaining unit members who had worked at Forestply's Ontario, Canada facilities. Complaint, ¶ 18. The Plaintiff obtained a judgment in the Ontario Superior Court of Justice against Forestply on April 16, 2007 in the amount of $170,174.14 with interest of 6% accruing from the date of February 26, 2007. Id. at ¶ 19. [Court Doc. No. 1-3].
In Case No. 07-CV-344952 the Plaintiff obtained an arbitration award and a judgment entered in the Ontario Superior Court of Justice against Defendant Neil Jorgensen in the amount of $61,062.14. The arbitrator found him personally liable for the vacation pay previously assessed against Forestply, which remained unpaid at that time. Complaint, ¶¶ 22-23. The judgment was entered on December 5, 2007 with interest accruing at 6% as of that date. Id. See also, [Court Doc. No. 1-4]. In his opinion pertaining to Neil Jorgensen, the arbitrator found that
The union submits that Neil Jorgensen was at all relevant times the principal of the employer corporation. Attached to its submission is a copy of the Corporation Profile Report produced from the Ministry of Consumer and Business Services confirming that Mr. Jorgensen continues as the sole corporate officer. [Court Doc. No. 1-4, p. 6]. The arbitrator accepted the union's position that Mr. Jorgensen was operating as a corporate officer and awarded a judgment against him. Id.
The Complaint further alleges that Forestply failed to file corporate annual reports with the State of Michigan and asserts that its failure to meet corporate obligations under Michigan law has made its principals personally liable for the company's debts. Complaint, ¶ 33-38. As of the date of Plaintiff's motion for summary judgment, none of the sums awarded in the Canadian arbitration awards and subsequent judgment had been paid. [Court Doc. No. 53-2, Declaration of John Goldthorp ("Goldthorp Decl."), ¶ 5]. Documents filed in support of Plaintiff's motion for summary judgment support most of the general allegations in Plaintiff's Complaint. See Goldthorp Decl.; [Court Doc.Nos. 53-6; 53-7; 53-8]. In addition, Plaintiff has submitted records pertaining to Forestply from the website of the Michigan Department of Labor and Economic Growth. [Court Doc. No. 53-14]. These records demonstrate that Forestply filed its Articles of Incorporation on November 30, 1979. Id. They further show that Forestply had a status of "automatic dissolution" as of May 15, 1993. Id. at p. 4. Defendant Quay Jorgensen was listed on the Articles of Incorporation as the sole incorporator, and he was the sole signatory of the Articles of Incorporation. Id. at pp. 6-7. The 1990 Annual Report for the company lists Quay Jorgensen as the President of Forestply with an address of Centralia, Washington. Id. at p. 10. Plaintiff has not supplied this court with copies of the relevant CBA or with further documents pertaining to the arbitration proceedings, such as relevant exhibits provided to the arbitrator.
In response to Plaintiff's assertion that Quay Jorgensen is an officer of the dissolved company Forestply, Mr. Jorgensen's responsive brief states:
Plaintiff does not provide any evidence and has not alleged, as it has with respect to Neil, that Quay appeared in the arbitration proceedings leading to the foreign judgments or that the arbitrator found Quay personally liable for any of the arbitration awards. Moreover, Plaintiff has offered no evidence that Quay participated in any way in the continued operations of Forestply following its automatic dissolution or that he was involved in the decisions to enter into the labor agreements that were the subject of the arbitration awards and foreign judgments. In the absence of evidence that Quay participated in or acquiesced in the labor agreements, his mere status as incorporator and officer is insufficient to make him liable for the amended judgment. [Court Doc. No. 58, pp. 2-3]. Defendant Quay Jorgensen did not file an affidavit in support of his assertion that he was not involved as an officer of Forestply following its dissolution. In reply to the responsive briefing from Quay Jorgensen, Plaintiff filed the interrogatory responses of Neil Jorgensen. [Court Doc. No. 59-3]. When asked to describe his position with Forestply, Neil Jorgensen responded in discovery:
Though I was actively involved in the business, and can understand how I may be mistaken as an owner, I am not a principal of Forestply. I have never been an officer, director, shareholder, or principal of Forestply Industries, Inc. I have never been an employee of Forestply Industries, Inc. If I inadvertently said in my Amended Answer to Complaint that I was a principal of Forestply, I was wrong.
My father, Quay Jorgensen, was the sole owner and principal of this company.
My sole involvement was to assist my father in the operation of the company in his absence. I gave this assistance in 2003 and up through the arbitration proceedings in Canada; however, I never actually attended an arbitration hearing.
Id. at p. 2. He further responded that "[t]o the best of my information, knowledge and belief, Quay Jorgensen has been the only owner, officer, director, shareholder, and/or principle [sic] of Forestply Industries, Inc. I do not know of any other person who has served in any of those capacities in connection with this company." Id. at p. 3.
Plaintiff seeks enforcement of the Canadian judgments against both Neil and Quay Jorgensen.
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The burden is on the moving party to show conclusively that no genuine issue of material fact exists, and the Court must view the facts and all inferences to be drawn therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 587 (1986); Morris v. Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1997); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943 (6th Cir. 1990); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987).
Once the moving party presents evidence sufficient to support a motion under Fed. R. Civ. P. 56, the nonmoving party is not entitled to a trial merely on the basis of allegations. The nonmoving party is required to come forward with some significant probative evidence which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); White, 909 F.2d at 943-44; 60 Ivy Street, 822 F.2d at 1435. The moving party is entitled to summary judgment if the nonmoving party fails to make a sufficient showing on an essential element of the nonmoving ...