13

- 4621

- cv

Trustees o f N.Y.C. Dist. v. Integrated Structures Corp.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY OR DER DO NOT HAVE PREC EDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COUR T , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTR ONIC DATABASE ( WITH THE NOTATION

" SUMMARY ORDER "). A PARTY CITING A SU MMARY ORDER MUST SER VE A COPY OF IT ON ANY PARTY NOT REPRES ENTED BY COUNSEL .

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, o n the 11th day of Dec ember , two thousand four teen.

PRESENT: D ENNY CHIN ,

SUSAN L. CARNEY,

Circuit Judges , ROBERT W. SWEET,

District Judge

. *

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
TRUSTEES OF THE NEW CITY DISTRICT COUNCIL OF CARPENTERS PENSION FUND, WELFARE FUND, ANNUITY FUND, A PPRENTICESHIP, JOURN EYMAN RETRAINING EDUCATION AL AND INDUSTRY FUND , CHARITY FUND, NEW YO RK CITY AND VICINITY CARPENTERS LABOR

- MANAGEMENT COOPERATION FUND, DISTRICT COUNCIL FOR NEW YORK CITY AND VICINITY , UNITED BROTHERHOOD OF CARPENTERS AND JOINE RS OF AMERICA , Plaintiff s

- Appellee s ,

v. 13

- 4 621

- cv

* The Honorable Robert W. Sweet, of the United States District Court for the Southern District of New York, sitting by designation.- 2

-

INTEGRATED STRUCTURES CORP. , Defendant

- Appellant

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
FOR PLAINTIFF S

- APPELLEE S : Michael Bauman, Richard B. Epstein , and Charles R. Virginia, Virginia & Ambinder , LLP, New York, New York.

FOR DEFEND ANT

- APPELLANT: Alan B. Pearl, Will iam M. Brown, and Brian J. Shenker, Alan B. Pearl & Associates , P.C., Syosset, New York.

Appeal from the United States District C ourt for the Southern District of
New York ( Forrest , J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in
part and VACATED in part and the case is REMANDED for further proceedings

.

Defendant

- appellant Integrated Structures Corp. (" Integrated ") appeals

from the judgment of the district court filed November 21, 2013. By Opinion and Order

dated November 12, 2013, the district court granted summary judgment to plaintiff s appellee s Trustees of the New York City District Council of Carpenters Pension Fund ,
Welfare Fund , Annuity Fund , Apprenticeship, Journeyman Retrainin g Educational and Industry Fun d , Trustees of the New York City District Council of Carpenters Charity

Fund ( the " Funds ") , and the District Council for New York City and Vicinity, United Brotherhood of Carpenters and Joiners of America (the "Union"). This matter arises- 3

-

from arbitr ation awards against Integrated and the Francis A. Lee Company ("FALC") for unpaid contributions to the F unds, pursuant to a collective bargai ning agreement

with the Union. We assume the parties' familiarity with the facts, procedural history,

and issues on appeal.

In the district court, plaintiffs sought confirmation of a November 1, 2011 arbitration award against Integrated, and, in an amended complaint, additionally sought to hold Integrated liable for an arbitration award against FALC, which was

conf irmed in an October 4, 2011 default judgment entered by Judge Swain. The district court granted summary judgment on both claims, ordering entry of (1) judgment against Integrated in the amount of $85,868.26, arising out of the arbitration award against Integrated, and (2) judgment against Integrated in the amount of $159,687.88, arising out of the arbitration award against FALC, on the theory that Integrated is the alter ego of FALC. On appeal, I ntegrated does not challenge the confirmation of the arbitration award against it , but argues that the district court erred in holding that it is the alter ego of FALC and therefore liable for the arbitration award against FALC.

"We review an order gran ting summary judgment de novo , drawing all

factual inferences in favor of the non

- moving party." Kwong v. Bloomberg , 723 F.3d 160,
164 (2d Cir. 2013) ( internal quotation marks om itted). The movant must show " that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is appropriate- 4

-

"[w]here the record taken as a whole could not lead a rational trier of fact to fi nd for the

non
- moving party." Matsushita Elec . Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587
(1986). In considering whether one company is the alter ego of another , t his C ourt

has held that the inquiry depends on "the totality of the facts

. " United States v. Funds Held in the Name or for the Benefit of Wetterer , 210 F.3d 96, 106 ( 2d Cir. 2000) (internal quotation mark omitted)

. The analysis " focuses on commonality of (i) management, (ii)

business purpose, (iii) operations, (iv) equipment, (v) customers, and (vi) supervision and ownership." N.Y. State Teamsters Conference Pens. & Ret. Fund v. Express Servs., Inc. , 426 F.3d 640, 649 (2d Cir. 2005) (internal quotation marks omitted)

. "The purpose of the alter ego doctrine in the ERISA context is to prevent an employer from evading its obligation under the labor laws," consistent with "a general federal policy of piercing the corporate veil when necessary

. " Ret. Plan of UNITE HERE Nat'l Ret. Fund v. Kombassan Holding A.S. , 629 F.3d 282, 288 (2d Cir. 2010 ) (internal quotation marks
omitted)

. "[T]he test of alter ego status is flexible, allowing courts to weigh the

circumstances of the individual case . . . ." Id. at 288 (alteration in original) (internal quotation marks omitted)

.

The district court found a lter ego status on the basis of three primary

factors : (1) commonalities between Integrated and FALC as parallel companies, (2) Integrated as the "disguised continuance" of FALC after FALC ceased operations, and- 5

-

(3) "anti

- union animus" on the part of Francis Lee, the owner of Integrated and FALC. The district court wrote: "[T]he Court finds FALC to be an alter ego of Integrated." App.

at 286. It concluded that "[t]he C ourt finds that there is no genuine issue of material fact as to plaintif fs' second claim for relief

-- because Integrated and FALC are alter egos."

Id. at 288. We hold , however, that genuine issues of material fact exist ed as to whether Integrated and FALC were alter egos . The record contained evidence from which a

reasonab le factfinder could have found that plaintiffs had not met their burden of proving that Integrated was the alter ego of FALC.

While the record certainly contained evidence of a substantial overlap in management and operations, there was also evidence that the two companies were separate, independent entities. FALC was primarily in the steel business, while Integrated performed primarily concrete work (at least until FALC went out of
business). The two companies had different telephone numbers, filed separate tax returns, maintained separate bank accounts, and "always kept their finances separate; funds were not shuffled between the companies." Id. at 219

- 20. Integrated employed three supervisors who were concrete specialists, as well as union lather s, masons, and
carpenters. FALC, on the other hand, employed two supervisors who were steel installation specialists, as well as iron workers and engineers. Nor did Integrated and FALC share the same equipment. Integrated generally used earth moving mac hinery,- 6

-

whereas FALC worked with cranes, welding machines, and generators. This
equipment was rented and billed separately.

T he district court held that Integrated became a "disguised continuance" of FALC after FALC ceased operations. Id. at 286; see L ihli Fashions Corp. v. NLRB , 80
F.3d 743, 748 (2d Cir. 1996) (per curiam) ("The focus of the alter ego doctrine . . . is on the existence of a disguised continuance or an attempt to avoid the obligations of a collective bargaining agreement through a sham transaction or technical change in operations." (internal quotation marks omitted) ). It also found that Integrated and

FALC exhibited ant i

- union animus. "[A]nti

- union animus or an intent to evade union obligations . . . may be germane, or even a sufficient basis for imposing alter ego status," though it is not a necessary fin ding. Goodman Piping Prod s
. , Inc. v. NLRB , 741 F.2d 10, 12
(2d Cir. 1984) (per curiam) (citation omitted) (inte rnal quotation marks omitted). Integrated , however, very much disputed whether its actions were motivated by an

anti

- union animus or an intent to evade union obligations . T he record was not so one

sided as to preclude a reasonable factfinder from holding in Integrated's favor

. By finding animus, the dist rict court prematurely resolved an important issue of fact against the party opposing summary judgment.

Accordingly, we AFFIRM the judgment of the district court to the extent
that it confirmed the November 1, 2011 arbit ration award against Integrated , and we- 7

-

VACATE the judgment of the district court to the extent it was based on the finding that Integrated was the alter ego of FALC, and we REMAND for further proceedings

.
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk