United States District Court, E.D. Michigan, Southern Division
TRUSTEES OF THE DETROIT CARPENTERS FRINGE BENEFIT FUNDS, Plaintiffs,
ANDRUS ACOUSTICAL, INC., a Michigan Corporation, STERLING MILLWORK, INC., a Michigan Corporation, ALAN ANDRUS, an individual, and MARK BOLITHO, an individual, jointly and severally, Defendants.
OPINION AND ORDER DENYING DEFENDANTS' MOTION TO
AMEND DAMAGES FINDINGS OF FACT AND CONCLUSIONS OF LAW AND
JUDGMENT, MOTION FOR NEW TRIAL, MOTION FOR RELIEF FROM
JUDGMENT (ECF NO. 114)
D. Borman United States District Judge
the Court is Defendants' Motion to Amend Damages and
Findings of Fact and Conclusion of Law and Judgment, Motion
for New Trial, Motion for Relief From Judgment. (ECF No.
114.) The Defendants specifically challenge the Court's
findings and conclusions with respect to damages awarded on
two construction jobs on which the Court has found that
Defendants Andrus Acoustical, Inc. (“Andrus”) and
Sterling Millwork, Inc. (“Sterling”) performed
covered carpentry work through an alter ego operation.
Plaintiffs filed a Response to the motion (ECF No. 150) and
Defendants did not file a Reply.
Court has concluded that oral argument is not necessary and
will decide the matter on the parties' written
submissions. E.D. Mich. L. R. 7.1(f)(2). For the reasons that
follow, the Court DENIES the motion.
history and background of this litigation is set forth in
numerous prior Opinions and Orders of this Court.
See ECF No. 24 (2/23/12 Opinion and Order Denying
Motion to Dismiss); ECF No. 65 (4/30/14 Opinion and Order
Denying Defendants' Motions For Summary Judgment); ECF
No. 87 (3/22/16 Amended Findings of Fact and Conclusions of
Law Following Bench Trial on Alter Ego Liability); ECF No.
111 (11/27/17 Findings of Fact and Conclusions of Law
Following Bench Trial on Damages).
Opinion and Order assumes familiarity with this lengthy
history, but in summary this Court has found that Andrus (a
Union entity) and Sterling (a non-Union entity) performed
covered carpentry work through an alter ego operation on
eight construction projects between the years 2008 - 2011,
and has awarded the Plaintiff Funds damages for unpaid fringe
benefit contributions in the amount of $1, 080, 543.38 based
upon that alter ego finding. Defendants now challenge the
Court's findings and conclusions on damages with respect
to two of those projects.
STANDARDS OF REVIEW
move the Court pursuant to three different procedural rules:
Fed.R.Civ.P. 52(a)(5) and (b), Fed.R.Civ.P. 59(a), and
Fed.R.Civ.P. 60(b). Rule 52(a)(5) provides, with respect to
the Court's findings of fact and conclusions of law
following a non-jury trial, that: “A party may later
question the sufficiency of the evidence supporting the
findings, whether or not the party requested the findings,
objected to them, moved to amend them, or moved for partial
findings.” Rule 52(b) provides that: “On a
party's motion filed no later than 28 days after entry of
judgment, the court may amend its findings - or make
additional findings - and may amend the judgment accordingly.
The motion may accompany a motion for a new trial under Rule
59.” Fed.R.Civ.P. 52(b). “Under Rule 52(b), a
court may amend its findings and its judgment upon a motion
by a party made not later than ten [now 28] days after the
entry of judgment. Rule 52 is not intended to serve as a
vehicle for a rehearing.” Laborers Pension Trust
Fund - Detroit and Vicinity v. Interior Exterior Specialists
Construction Grp., Inc., No. 04-74514, 2008 WL 11399707,
at *1 (E.D. Mich. Oct. 20, 2008) (internal quotation marks
and citation omitted) (alteration added). “This Court
must apprise prospective appellate courts of the basis of the
trial court's decision, and Rule 52(b) gives parties an
opportunity for expending the findings of fact.”
Id. (internal quotation marks and citation omitted).
This “Court is only required to have made herein
findings sufficient to indicate the factual basis for the
ultimate conclusion.” Id. (internal quotation
marks and citation omitted).
provides in relevant part that “[t]he court may, on
motion, grant a new trial on all or some of the issues - and
to any party . . . (B) after a nonjury trial, for any reason
which a rehearing has heretofore been granted in a suit in
equity in federal court.” Fed.R.Civ.P. 59(a)(1)(B).
Such a motion “must be filed no later than 28 days
after the entry of judgment.” Fed.R.Civ.P. 59(b). Rule
59(e) provides that a “motion to alter or amend a
judgment must be filed no later than 28 days after the entry
of the judgment.” “A district court may grant a
Rule 59(e) motion to alter or amend judgment only if there
is: ‘(1) a clear error of law; (2) newly discovered
evidence; (3) an intervening change in controlling law; or
(4) a need to prevent manifest injustice.'”
Henderson v. Walled Lake Consolidated Schools, 469
F.3d 479, 496 (6th Cir. 2006) (citing Intera Corp. v.
Henderson, 428 F.3d 605, 620 (6th Cir.2005).
provides that: “On motion and just terms, the court may
relieve a party or its legal representative from a final
judgment, order, or proceeding” for any of a number of
listed reasons including “mistake, inadvertence,
surprise, or excusable neglect, ” or “fraud . . .
or any other reason that justifies relief.”
Fed.R.Civ.P. 59(b)(1-6). A motion filed under Rule 60
“does not affect the judgment's finality or suspend
its operation.” Fed.R.Civ.P. 60(c)(2).
clear from their prayer for relief, Defendants challenge the
sufficiency of the evidence in support of the Court's
findings and conclusions as to these two jobs and ask the
Court to amend its findings of fact and amend its judgment
accordingly: “Defendants respectfully ask this Court to
amend its findings and conclusions and to reduce the Judgment
by $470, 665.81, which is comprised of $91, 842.95 for
carpentry, $35, 393.92 for carpentry millwork, $171, 714.47
in interest, and $171, 714.47 in penalty interest.”
(ECF No. 114, Defs.' Mot. at 6, PgID 2939.)
Court finds no basis to amend its findings or its judgment
and is satisfied that it has articulated sufficient findings
to indicate the factual basis for its findings and
conclusions, and reiterates in part as follows:
(1) Ocean Prime: Defendants assert that “the
Court's findings on the Ocean Prime job are not supported
by evidence connecting this job with Andrus
Acoustical.” (Defs.' Mot. 3.) The Court's
findings are supported by ample evidence connecting this job
to Andrus Acoustical including, as set forth in ¶¶
9(a-f) of its Findings of Fact and Conclusions of Law on
Damages, the following: 1) Sterling's contract for the
Ocean Prime job required union labor for categories of work
including millwork (¶ 9(a)); 2) the Court found
incredible Mr. Bolitho's testimony that Sterling has
never had a contract requiring union labor for millwork
(¶9(b)); 3) Sarah Johnston's notes directed the
payment of “mill stuff” at “union
rates;” (¶ 9(b); 4) multiple employees testified
and submitted time sheets designating ...