United States District Court, D. Nevada
TRUSTEES OF THE CONSTRUCTION INDUSTRY AND LABORERS HEALTH AND WELFARE TRUST, et al., Trustees,
PRO-CUT LLC, Defendant.
M. Navarro, Chief Judge United States District Judge
before the Court is Trustees' Motion for Reconsideration,
(ECF No. 71), of the Court's Order, (ECF No. 70), entered
April 26, 2016. Intervenors Evelyn Bruns-Witt, CM Builders,
Inc., Forte Speciality Contractors, LLC, and Aegis Security
Insurance Company (collectively “Intervenors”)
filed a Response, (ECF No. 74), and Trustees filed Reply,
(ECF No. 76). For the reasons discussed below, the Court
DENIES Trustees' Motion.
case centers upon the Trustees' claims against Defendant
Pro-Cut, LLC (“Pro-Cut”) for delinquent ERISA
contributions owed by its alleged alter ego, B. Witt Concrete
Cutting, Inc. (“B. Witt”). On August 9,
2013, the Court found that Pro-Cut was the alter ego of B.
Witt. (Order 8:8, ECF No. 40). As a result, the Court granted
the Trustees' motion for summary judgment and denied
Pro-Cut's competing motions for summary judgment.
the Clerk of Court entered judgment in favor of the Trustees
that same day. (Clerk's J., ECF No. 41).
April 15, 2015, the Court granted the parties' stipulated
motion to reopen this case for the limited purpose of
reviewing subject matter jurisdiction. (Order, ECF No. 56).
Shortly thereafter, Intervenors filed a Motion pursuant to
Federal Rule of Civil Procedure 60(b)(4) to set aside the
Court's Order granting the Trustees' Motion for
Summary Judgment. (Mot. to Set Aside 1:24-25, ECF No. 57).
The Court granted Intervenors' Motion to Set Aside,
finding that “this case is a ‘garden-variety
judgment-enforcement action based on a retroactive alter-ego
claim.'” (Order 4:15-16, ECF No. 70) (quoting
Ellis v. All Steel Const., Inc., 389 F.3d 1031, 1036
(10th Cir. 2004)). The instant Motion asks the Court to
reconsider its Order. (See Mot. for Reconsideration,
ECF No. 71).
motion for reconsideration should not be granted, absent
highly unusual circumstances.” Carroll v.
Nakatani, 342 F.3d 934, 945 (9th Cir. 2003).
Reconsideration is appropriate where: (1) the court is
presented with newly discovered evidence, (2) the court
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law. School Dist. No. 1J, Multnomah County v.
ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
However, a motion for reconsideration is not a mechanism for
rearguing issues presented in the original filings,
Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.
1985), or “advancing theories of the case that could
have been presented earlier, ” Resolution Trust
Corp. v. Holmes, 846 F.Supp. 1310, 1316 (S.D. Tex.
1994). Thus, Rules 59(e) and 60(b) are not “intended to
give an unhappy litigant one additional chance to sway the
judge.” See Durkin v. Taylor, 444 F.Supp. 879,
889 (E.D. Va. 1977).
requests that the Court “reconsider its Order because
Pro-Cut's direct, ongoing liability for Trust Fund
contributions presents a federal question and there is,
therefore requisite arguable basis for jurisdiction.”
(Mot. to Reconsider 3:2-4, ECF No. 71). However, the Court
has reviewed its prior Order and the arguments presented by
Trustees and has found no reason to overturn its Order. The
Court finds neither clear error nor manifest injustice in its
reasoning that ERISA fails to confer federal jurisdiction
over this matter. Further, jurisdiction is not proper under
§ 301 of the Labor Management Relations Act
(“LMRA”). Section 301 provides federal
jurisdiction in “[s]uits for violation of contracts
between an employer and a labor organization representing
employees in an industry affecting commerce.” 29 U.S.C.
§ 185(a). This case, however, does not implicate a
contract between Trustees and Pro-Cut but is “rather
simply an attempt to collect on a judgment obtained in a
separate lawsuit.” (Order 5:2-4, ECF No. 70).
Accordingly, Trustees' Motion to Reconsider is denied.
HEREBY ORDERED that Trustees' Motion for Reconsideration,
(ECF No. 71), is DENIED.