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Marshall v. Anderson Excavating and Wrecking Co.

United States District Court, D. Nebraska

August 21, 2019

ROD MARSHALL, Trustee, et al., Plaintiffs,
v.
ANDERSON EXCAVATING AND WRECKING CO., Defendant.

          MEMORANDUM AND ORDER

          JOHN M. GERRARD CHIEF UNITED STATES DISTRICT JUDGE

         The background of this case is set forth in the Court's findings of fact following a bench trial (filing 77) and the Eighth Circuit's decision (filing 100) reversing this Court's judgment and remanding the cause for further proceedings. This matter is now before the Court on the plaintiff's motion for an award of attorney's fees, interest, liquidated damages, and auditing costs (filing 108), through which the parties intend to resolve the issues remaining for the Court after remand.

         The only issue addressed by the Eighth Circuit was whether the Court erred in applying the alter ego doctrine to justify its award of unpaid contributions for work performed by Jose Tovar. See filing 100 at 13. The plaintiffs (with one small exception) no longer seek damages for those contributions. See filing 109. But, generally summarized, the parties continue to dispute the following issues:

• Whether actual damages, prejudgment interest, and liquidated damages may be awarded for work Jose Tovar did on a particular Anderson Excavating project;
• Whether damages may be awarded for work performed by Jeff Hightree and Rodney Wachter;
• Whether prejudgment interest should be awarded and, if so, at what rate;
• How much the plaintiffs should be awarded in liquidated damages;
• Whether the plaintiffs can recover auditing expenses; and
• Whether attorney's fees should be awarded and, if so, in what amount.

See filing 110. But the Court's prior rulings on many of those issues are the law of the case, and the Court chooses to adhere to its previous rulings. As explained below, the Court declines to award any damages with respect to Jose Tovar's work, but will adhere to its previous rulings with respect to Hightree and Wachter, prejudgment interest, and auditing fees. The Court will also award attorney's fees, but will reduce the plaintiffs' fee request to reflect their lack of success on most of their claims.

         Jose Tovar

         The Court will start with Jose Tovar. As noted, the Eighth Circuit held that the Court "legally erred in applying the alter ego doctrine to justify an award of unpaid contributions for Tovar's work." Filing 100 at 13. The plaintiffs continue to seek damages based on 18 hours from Anderson Excavating's payroll reports for work Tovar performed on the Stratcom project. See filing 108-1 at 4-5; see also filing 112 at 1-2. The plaintiffs argue that while the "Eighth Circuit clearly reversed and remanded the case back to this Court to exclude those amounts that were included under the alter-ego doctrine-the Eighth Circuit's decision did not extend an open invitation to re-litigate the entire amount of the underlying delinquency." Filing 112 at 2.

         And that's true enough-but the Court isn't persuaded that the 18 hours the plaintiffs still seek payment for are separate from the rest of Tovar's work. And when an appellate court remands a case to the district court, all issues decided by the appellate court become the law of the case, and the district court on remand must adhere to any limitations imposed by the appellate court. See United States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995). Here, that limitation is: don't apply the alter ego doctrine.

         The argument advanced at trial by Anderson Excavating with respect to Tovar was that he was employed by a separate entity and that the plaintiffs had "no right to make any claim to Jose Tovar because he is not employed by a party to the Collective Bargaining Agreement." Filing 76 at 18. The alter ego doctrine was the basis for the Court's rejection of that argument. Filing 77 at 18. And the plaintiffs have provided the Court with no alternate basis to conclude that Tovar's 18 hours of work on the Stratcom project, as an employee of Anderson Plus, were subject to any collective bargaining agreement.

         Accordingly, the Court agrees with Anderson Excavating that Tovar was not a covered employee, and will not award unpaid contributions, prejudgment interest, or ...


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