Operating Engineers Local No. 101 Pension Fund v. K.C. Excavating & Grading, Inc.

Eighth Circuit

Operating Engineers Local No. 101 Pension Fund v. K.C. Excavating & Grading, Inc.

57 F. App'x 273

CourtCourt of Appeals for the Eighth Circuit

DecidedFebruary 5, 2003

Docket02-1988

StatusUnpublished

Cited by1 cases

This text of 57 F. App'x 273 (Operating Engineers Local No. 101 Pension Fund v. K.C. Excavating & Grading, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Operating Engineers Local No. 101 Pension Fund v. K.C. Excavating & Grading, Inc., 57 F. App'x 273 (8th Cir. 2003).

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Opinion

PER CURIAM.

Operating Engineers Local No. 101 Pension Fund and the other plaintiffs brought an action for recovery of unpaid contributions for fringe benefits under ERISA and recovery of unpaid union wages and dues under § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. The District Court 1 granted summary judgment to plaintiffs, concluding that no material facts were in dispute and holding that defendant G&C Excavating, LLC, was the alter ego of defendant KC. Excavating & Grading, Inc., for the purposes of both the ERISA claim and the § 301 claim. Determining that the two defendants are jointly and severally hable for the unpaid contributions and union wages, the court awarded damages as follows: $35,398.53 in unpaid contributions; $7,326.70 in liquidated damages; $1,157.25 in accrued interest; and $99,960.44 in unpaid wages, for an award of damages in the total amount of $143,842.92. The District Court entered final judgment, and defendants appeal.

For reversal, defendants argue that the summary-judgment record creates a genuine issue of material fact as to whether the defendants are alter egos of one another. They also argue that as a matter of law § 301 of the LMRA does not allow a union to recover unpaid wages on behalf of would-be employees deprived of work by an employer in violation of a cohective bargaining agreement. Having carefully *274 considered the briefs and the record, we conclude the first argument is without merit and the second argument has been waived. We are satisfied the evidence presented by defendants in opposing plaintiffs’ motion for summary judgment is inadequate to create a genuine issue of material fact as to the alter-ego relationship between the two defendants. Defendants’ argument that the plaintiff union may not recover unpaid wages on behalf of would-be employees was made for the first time after judgment was issued by the District Court, and thus was waived. See Schoffstall v. Henderson, 223 F.3d 818, 827 (8th Cir.2000); Concordia Coll. Corp. v. W.R. Grace & Co., 999 F.2d 326, 330 (8th Cir. 1993), cert. denied, 510 U.S. 1093,114 S.Ct. 926,127 L.Ed.2d 218 (1994).

No error of law appears, and a full opinion by this Court would lack substantial precedential value. The judgment of the District Court is affirmed. See 8th Cir. R. 47B.

1

. The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri.

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PER CURIAM.

Operating Engineers Local No. 101 Pension Fund and the other plaintiffs brought an action for recovery of unpaid contributions for fringe benefits under ERISA and recovery of unpaid union wages and dues under § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. The District Court 1 granted summary judgment to plaintiffs, concluding that no material facts were in dispute and holding that defendant G&C Excavating, LLC, was the alter ego of defendant KC. Excavating & Grading, Inc., for the purposes of both the ERISA claim and the § 301 claim. Determining that the two defendants are jointly and severally hable for the unpaid contributions and union wages, the court awarded damages as follows: $35,398.53 in unpaid contributions; $7,326.70 in liquidated damages; $1,157.25 in accrued interest; and $99,960.44 in unpaid wages, for an award of damages in the total amount of $143,842.92. The District Court entered final judgment, and defendants appeal.

For reversal, defendants argue that the summary-judgment record creates a genuine issue of material fact as to whether the defendants are alter egos of one another. They also argue that as a matter of law § 301 of the LMRA does not allow a union to recover unpaid wages on behalf of would-be employees deprived of work by an employer in violation of a cohective bargaining agreement. Having carefully *274 considered the briefs and the record, we conclude the first argument is without merit and the second argument has been waived. We are satisfied the evidence presented by defendants in opposing plaintiffs’ motion for summary judgment is inadequate to create a genuine issue of material fact as to the alter-ego relationship between the two defendants. Defendants’ argument that the plaintiff union may not recover unpaid wages on behalf of would-be employees was made for the first time after judgment was issued by the District Court, and thus was waived. See Schoffstall v. Henderson, 223 F.3d 818, 827 (8th Cir.2000); Concordia Coll. Corp. v. W.R. Grace & Co., 999 F.2d 326, 330 (8th Cir. 1993), cert. denied, 510 U.S. 1093,114 S.Ct. 926,127 L.Ed.2d 218 (1994).

No error of law appears, and a full opinion by this Court would lack substantial precedential value. The judgment of the District Court is affirmed. See 8th Cir. R. 47B.

1

. The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri.

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