Board of Trustees of the Southern Ohio Painters Health & Welfare Fund v. Sixth Region Remodeling, LLC

UNSOITUETDH SETRANT DESIS DTIRSITCRTI COTF COOHUIOR T

WESTERN DIVISION AT DAYTON

BOARD OF TRUSTEES

OF THE SOUTHERN OHIO

PAINTERS HEALTH &

WELFARE FUND,

Plaintiff, Case No. 3:21-cv-300

vs.

SIXTH REGION REMODELING, District Judge Michael J. Newman

LLC, et al., Magistrate Judge Peter B. Silvain, Jr.

Defendants.

____________________________________________________________________________________

ORDER: (1) DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR SUMMARY

JUDGMENT (Doc. No. 45); (2) DENYING WITHOUT PREJUDICE DEFENDANTS’ MOTION

FOR SUMMARY JUDGMENT (Doc. No. 48); (3) REOPENING DISCOVERY UNTIL

NOVEMBER 17, 2025; (4) REFERRING THIS CASE TO MAGISTRATE JUDGE PETER B.

SILVAIN, JR. TO SUPERVISE DISCOVERY; (5) EXTENDING THE PARTIES’ DEADLINE

TO FILE DISPOSITIVE MOTIONS UNTIL DECEMBER 17, 2025; AND (6) DENYING AS

MOOT DEFENDANTS’ MOTION TO STRIKE THE DECLARATIONS OF PAUL

FULLERMAN AND KATE BURCH (Doc. No. 50)

____________________________________________________________________________________

Plaintiff Board of Trustees of the Southern Ohio Painters Health & Welfare Fund sued Defendant

Sixth Region Remodeling, LLC (“Sixth Region”) under the Employee Retirement Income Security Act

(“ERISA”), 29 U.S.C. § 1132, and the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, to

recover unpaid contributions from, and conduct an audit on, Sixth Region pursuant to the parties’

collective bargaining agreement. Doc. No. 36 at PageID 378-82. Plaintiff also asserts a claim against

GMCR Construction, LLC (“GMCR Construction”). Id. at PageID 382-83. According to Plaintiff,

GMCR Construction is an alter ego of Sixth Region and is therefore liable for any damages owed by Sixth

Region to Plaintiff. Id.

The case is before the Court upon Plaintiff’s motion for summary judgment (Doc. Nos. 45, 45-1),

Defendants’ memorandum in opposition (Doc. No. 49), and Plaintiff’s reply (Doc. No. 53). Also pending

is Defendants’ cross motion for summary judgment (Doc. Nos. 48, 49), Plaintiff’s memorandum in

opposition (Doc. No. 53), and Defendants’ reply (Doc. No. 54). Finally, Defendants moved to strike the

declarations of Paul Fullerman and Katie Burch. Doc. No. 50. Plaintiff has responded (Doc. No. 52), and

Defendants have replied (Doc. No. 55). Thus, these motions are ripe for review.

I.

A motion for summary judgment should be granted if the evidence submitted to the Court

demonstrates that no genuine issue of material fact is present, and the movant is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The burden is on the moving party to conclusively

show no genuine issue of material fact exists. Celotex, 477 U.S. at 323; Lansing Dairy, Inc. v. Espy, 39

F.3d 1339, 1347 (6th Cir. 1994). The moving party must either point to “particular parts of materials in

the record, including depositions, documents, electronically stored information, affidavits or declarations,

stipulations . . . admissions, interrogatory answers, or other materials” or show “that the materials cited

do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” See Fed. R. Civ. P. 56(c)(1)(A) and (B).

A court considering a motion for summary judgment must view the facts and all inferences in the

light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986). However, “[t]he non-moving party … may not rest upon [its] mere allegations or denials

of the adverse party’s pleadings, but rather must set forth specific facts showing that there is a genuine

issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citations omitted).

“[T]here is no duty imposed upon the trial court to ‘search the entire record to establish that it is bereft of

a genuine issue of material fact.’” Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 404 (6th Cir. 1992)

(citations omitted). Instead, “the free-ranging search for supporting facts is a task for which attorneys in

the case are equipped and for which courts generally are not.” Id. at 406.

The Court’s standard of review does not change when the parties file cross motions for summary

judgment. See Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991). “Rather, the court

must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable

inferences against the party whose motion is under consideration.” Lansing Dairy, Inc. v. Espy, 39 F.3d

1339, 1347 (6th Cir. 1994) (quoting Taft Broad. Co., 929 F.2d at 248).

II.

The Court, after fully and carefully reviewing the record, finds there are genuine disputes of

material fact regarding all claims that cannot be resolved on summary judgment. The Court shall not

enter “the jury box to consider the credibility of witnesses and evidence in resolving conflicts of material

fact in disposing of the summary judgment motion[s]” here, considering that the trier of fact has the best

vantage point to decide these issues. Flynt v. Brownfield, Bowen & Bally, 882 F.2d 1048, 1053 (6th Cir.

1989) (Krupansky, J., dissenting). Among other disputed facts, a genuine dispute exists concerning Sixth

Region’s and GMCR Construction’s contribution obligations to Plaintiff, thus foreclosing summary

judgment in either parties’ favor. See Trs. of Sheet Metal Workers Loc. 7 Zone 1 Pension Fund v. Pro

Servs., Inc., 65 F.4th 841, 850–51 (6th Cir. 2023) (genuine dispute of facts concerning the amount of

performed work covered by the collective bargaining agreement barred summary judgment); Trs. of

Abatement Workers Reg’l Loc. Union No. 207 Health & Welfare Fund v. Northwest Firestop, Inc., No.

11-cv-13982, 2013 WL 2033622 at *7-8 (E.D. Mich. May 14, 2013) (declining to grant summary

judgment based on an audit which may have erroneously included employees and hours); Trs. of Painters

Union Deposit Fund v. L&R Painting, LLC, No. 21-11780, 2024 WL 4341340, at *7 (E.D. Mich. Sept.

27, 2024) (finding that “[b]ecause the evidence as to defendants’ alter ego status is not so one-sided that

one party should prevail as a matter of law, a trier of fact must decide the issue of whether defendants are

alter egos of each other”).

There are also several discovery issues present in the parties’ motions for summary judgment. The

Court believes the efficient and appropriate way forward is to reopen discovery to give the parties a chance

to address their remaining concerns. Doing so will not significantly increase the cost of litigation nor

prejudice the parties’ ability to seek summary judgment again. Cf. Fed. R. Civ. P. 1 (The Federal Rules

of Civil Procedure “should be construed, administered, and employed by the court and the parties to secure

the just, speedy, and inexpensive determination of every action and proceeding”). The Court is also

amenable to appointing a Court auditor/special master to conduct an audit of Sixth Region’s records at the

parties’ request.

III.

For the reasons stated herein, the parties’ cross motions for summary judgment are both DENIED

WITHOUT PREJUDICE. The Court REOPENS discovery until November 17, 2025 and REFERS

this case to Magistrate Judge Peter B. Silvain, Jr. to supervise discovery during that period. The Court

also EXTENDS the parties’ deadline to file dispositive motions until December 17, 2025. Given the

Court’s rulings, the Court DENIES AS MOOT Defendants’ motion to strike the declarations of Paul

Fullerman and Kate Burch.

IT IS SO ORDERED.

August 19, 2025 s/Michael J. Newman

Hon. Michael J. Newman

United States District Judge