United States District Court, D. Nebraska
M. Gerrard United States District Judge
matter is before the Court on the defendant's motion for
new trial (filing 81). The defendant's motion
generally presents three arguments: the defendant argues that
the Court erred by (1) amending the pleadings to conform to
the evidence, (2) awarding damages for Jose Tovar's
covered work, and (3) awarding prejudgment interest. See
filing 82. The Court finds no merit to the
defendant's arguments, and will deny the motion for new
begin with, the defendant reiterates its claim that it was
somehow surprised at trial to be confronted with the theory
that it had, by its conduct, accepted CBAs subsequent to the
2004 CBA. Filing 82 at 2-5. The Court recognizes
that surprise during trial, by major variance in theory of
recovery or defense, undisclosed until after the trial is
underway, is a long-established ground for granting a new
trial motion. Lampkins v. Thompson, 337 F.3d 1009,
1013 (8th Cir. 2003). But the Court, for the reasons
explained in its Findings of Fact and Conclusions of Law
(filing 77), is unpersuaded by the defendant's
claim to have been surprised. Filing 77 at 12-13.
defendant places great reliance on the pretrial order
(filing 65), but that order quite expressly
identifies the controverted issue of "[w]hether the
collective bargaining agreement between International Union
of Operating Engineers, Local 571 and Anderson Excavating was
terminated, modified or replaced by another agreement
sometime after April 30, 2006[.]" Filing 65 at
4. If the defendant was surprised at trial, it should
not have been.
the defendant argues that the Court erred in finding the
defendant liable for delinquent contributions for 100% of the
work Tovar performed on the StratCom project and 15% of
Tovar's other work. See filing 77 at
17-19. The defendant contends that the Court erred in
considering an alter ego theory, and in finding that the
defendant was liable because it had not kept accurate records
of Tovar's work. Filing 82 at 5-7.
defendant's motion does not take issue with the
Court's explanation of the legal framework for these
issues, which makes a difference: the plaintiff has the
threshold burden to produce evidence showing that the
defendant failed to report some covered work performed by its
employees, after which the burden shifts to the employer to
produce evidence of the precise amount of work performed or
negate the inference drawn from the plaintiff's evidence.
Filing 77 at 14. Nor does the defendant take issue
with the Court's finding that the plaintiff met its
initial burden with respect to Tovar, shifting the
evidentiary burden to the defendant. Filing 77 at
when the defendant argues that records were not maintained
for Tovar because he was an employee of Anderson Excavating
Plus, not Anderson Excavating, that is an explanation for the
defendant's failure to meet its evidentiary burden-but it
is not an excuse. It was the defendant's office manager
who estimated that Tovar spent 15% of his time at job sites,
and the Court found that evidence to be credible. See
filing 77 at 10, 17. It was the defendant's burden
to account for the time that Tovar spent working at its job
sites, and it failed to do so.
the Court hold the plaintiffs' failure to plead an alter
ego theory against it when the Court can find no indication
in the record that the defendant, prior to trial, asserted a
denial or defense premised on the supposed corporate
distinction between itself and Anderson Excavating
Plus.A separate corporate entity that employs
workers who perform tasks at job sites, thereby avoiding
collective bargaining agreements and pension obligations, is
precisely the sort of chicanery that ERISA does not permit.
E.g., Trustees of Painters Union Deposit Fund v.
Interior/Exterior Specialist Co., 371 F.App'x 654,
660 (6th Cir. 2010); Cent. States, Se. & Sw. Areas
Pension Fund v. Sloan, 902 F.2d 593, 598 (7th Cir.
the Court persuaded by the defendant's contention that,
had it known that an alter ego theory might be at issue, it
would have called witnesses "to testify regarding the
corporate formalities and the distinctions between both
companies" such as "separate books and
records" and the "corporate formalities
observed." Filing 82 at 3. The test is not
whether corporate formalities are observed-to the contrary,
it is whether the businesses have independent existence
"in form only." Greater Kansas City Laborers
Pension Fund v. Superior Gen. Contractors, Inc., 104
F.3d 1050, 1055 (8th Cir. 1997). The point of the test is
that formalities are not enough, and nothing the defendant
suggests could have been proffered would rebut the course of
conduct upon which the Court's conclusion was based.
See filing 77 at 18.
the defendant complains that there is no basis to award
prejudgment interest. But 29 U.S.C. § 1132(g)(2)
requires the Court to award interest or liquidated damages as
provided by the benefits plan. The defendant cannot complain
that a request for interest was not pled when the statute
requires it, and when the complaint sought specific
performance of an agreement that, through the benefits plan,
also requires it. See, filing 1 at 4-5; exhibit 8.
Nor has the defendant provided any legal basis for its
argument that Nebraska state law limits the remedies for this
federal claim. The defendant also suggests that 26 U.S.C.
§ 6621 sets the appropriate interest rate.
Filing 81 at 15-16. But in this ERISA case, 29
U.S.C. § 1132(g)(2) is controlling.
ORDERED that the defendant's motion for new trial
(filing 81) is denied.
 The defendant's motion also
suggests that it is entitled to a new trial based upon
"newly discovered evidence, " filing 81 at
3, but the defendant did not identify what that evidence
was or ...