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Trustees of Empire State Carpenters Annuity v. JJJ Concrete Corp.

United States District Court, E.D. New York

January 29, 2015


For Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Management Cooperation, Pension and Welfare Funds, Plaintiff: Charles R. Virginia, Nathan V. Bishop, LEAD ATTORNEYS, Michael Bauman, Virginia & Ambinder LLP, New York, NY.

For JJJ Concrete Corp., Rell Concrete Corp., Defendants: Richard M. Mahon, LEAD ATTORNEY, Catania, Mahon, Milligram & Rider, PLLC, Newburgh, NY.


Arlene R. Lindsay, United States Magistrate Judge.

Before the Court, on referral from District Judge Feuerstein, are the motions by (1) plaintiffs Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Management Cooperation, Pension and Welfare Funds (" Plaintiffs" or the " Funds") and (2) defendants JJJ Concrete Corp. (" JJJ") and Rell Concrete Corp. (" Rell") (collectively, " Defendants") for summary judgment. For the reasons set forth below, the Court respectfully reports and recommends that Plaintiffs' motion be denied in its entirety and Defendants' motion be granted in part and denied in part.


The following facts are drawn from Plaintiffs' Local Rule 56.1 Statement (" Pls.' 56.1 Stmt."), Defendants' Local Rule 56.1 Statement and Counterstatement (" Defs.' 56.1 Stmt."), Plaintiffs' Local 56.1 Statement in Opposition (" Pls.' Opp'n 56.1 Stmt."), and the evidence proffered in support. The facts are undisputed unless otherwise noted.

A. The Collective Bargaining Agreement

Defendant JJJ executed a Collective Bargaining Agreement (" CBA") with the Northeast Regional Council of Carpenters, formerly known as the Empire State Regional Council of Carpenters (the " Union") on April 15, 2009. Pls.' 56.1 Stmt. ¶ 1. The CBA required JJJ to make specified hourly contributions to the Funds for every hour of work within the trade and geographical jurisdiction of the Union. Id. ¶ 3. The CBA required JJJ, inter alia, to furnish its books and payroll records when requested by the Funds for the purpose of conducting an audit to ensure compliance with benefit fund contribution requirements. Id. ¶ 4.

Pursuant to the CBA, the Funds attempted to conduct an audit of JJJ's books and records covering the period July 2009 through the present. Id. ¶ 5. The Funds also requested the records of defendant Rell, as the Funds believe Rell to be a related entity. Id. ¶ 6. JJJ refused to provide Rell's documents. Id. According to Defendants, JJJ is not obligated to provide Rell's documents to Plaintiffs because Rell is a separate legal entity and is not under contract with the Union nor under the control of JJJ. Defs.' 56.1 Stmt. ¶ 81.

B. JJJ Concrete Corp.

JJJ is a corporation which was established pursuant to the laws of the State of New York on April 17, 1979. Id. ¶ 1. JJJ was initially formed by Juaquim Almeida and was later owned by Mr. Almeida together with two other partners. Id. ¶ ¶ 2-3. Amorim Pereira a/k/a Amory Pereira (" Amory") subsequently bought out the two partners and continued ownership of JJJ with Mr. Almeida until approximately 2010, when Amory became its sole owner. Id. ¶ ¶ 4-6.

JJJ provides concrete construction services to large commercial clients, id. ¶ 13, and works solely on union projects, id. ¶ 14. JJJ has worked on West Point Hospital, West Point Middle School, Woodbury Commons, Newark Airport, and the Picatinny Arsenal in Morris County, New Jersey. Id. ¶ 15. JJJ uses high-end commercial equipment for its projects, which demand several thousand yards of concrete; as a result, JJJ has the capability to provide hundreds of yards of concrete each day. Id. ¶ ¶ 16-19. Due to the nature of the work, JJJ's employees must have the skills to collaborate with large teams of other workers and coordinate with other tradesman at the project sites like plumbers, electricians, framers, excavators, and steel workers. Id. ¶ 21. JJJ owns its own vehicles, including a 2003 Toyota pick-up truck, a 2003 Ford flatbed truck, a 2002 Chevrolet Suburban, a 2004 Chevrolet C4500, a 2001 Ford Van, a 2000 Ford F350 and a 1999 Ford F350. Id. ¶ 23.

JJJ's principal place of business is at 21 Grove Street, Spring Valley, New York, where it rents an office and yard space for storage of its equipment at approximately $35, 000 per year. Id. ¶ ¶ 7-8. 21 Grove Street is owned by Rochris Real Estate Corp. (" Rochris"), a company owned in part by Amory. Pls.' 56.1 Stmt. ¶ 25; Defs.' 56.1 Stmt. ¶ 100. Rental of the office and yard space entitles JJJ, and all other lessees at 21 Grove Street, to use all common areas on the property including the bathrooms, parking lot and a small meeting room in the first floor of the building. Defs.' 56.1 ¶ 9. According to Defendants, several other companies rent space in the yard area, along with JJJ, and also use the yard to store their equipment. Id. ¶ ¶ 10-11. These companies include Rodriguez Construction and Amjack Leasing, the latter of which is owned by Amory. Id. ¶ 10.

C. Rell Concrete Corp.

Rell was formed in 2010 and is solely owned by Lorell Pereira (" Lorell"), who is Amory's daughter. Id. ¶ ¶ 24-25. Lorell was 18 years old at the time of Rell's founding and had no experience in the construction business. Pls.' 56.1 Stmt. ¶ 10. Lorell is Rell's President, and there are no other officers. Id. ¶ 14; Defs.' 56.1 Stmt. ¶ 89. At her deposition, Lorell testified that Rell has never had any corporate meetings or Board of Directors meetings. Pls.' 56.1 Stmt. ¶ 42. Lorell further testified that her duties at Rell consist of signing checks, and she works approximately 1-3 hours per week. Id. ¶ 18.

Amory loaned Rell thousands of dollars at its start-up. Id. ¶ 11. According to Plaintiffs, this loan was undocumented. Id. ¶ 12. Defendants dispute this " characterization" and note that the record reflects that Amory gave Rell money " here and there" and not in one lump sum amount. Defs.' 56.1 Stmt. ¶ 87. It is undisputed that the loan or loans have not been repaid. Pls.' 56.1 Stmt. ¶ 13. Lorell made no capital contribution to Rell, and she does not know if Rell had any initial financing and if it did, from where it came. Id. ¶ ¶ 21-22.

Casey Pereira (" Casey"), Amory's son and Lorell's brother, formed the idea to start Rell because he saw a need a for small, non-union, residential concrete construction work in his area. Defs.' 56.1 Stmt. ¶ 30. Casey operates Rell on a day-to-day basis. Pls.' 56.1 Stmt. ¶ 20. Specifically, he works for Rell as a manager and labor relations director, and his job duties include making purchases for the company, forming job estimates, meeting with clients and layout of jobs. Defs. 56.1 Stmt. ¶ 28. Casey testified that he asked his sister Lorell to be Rell's owner so that she might qualify for opportunities by being a woman-owned small business. Id. ¶ 91.

Prior to working for Rell, Casey had worked in construction for several other construction companies. Id. ¶ 31. It is undisputed that Casey has never worked for JJJ. Id. ¶ 32. Casey has a Bachelor of Arts degree in business from St. Thomas Aquinas College. Id. ¶ 29.

According to Defendants, Amory played no role in the formation of Rell, though Casey did testify that Amory " helped [him] out a little bit" with financing. Id. ¶ 84; Deposition of Casey Pereira, dated May 9, 2014, at 10 (" Casey Dep."). Casey further testified that he put up " some" of the initial financing himself. Defs.' Rule 56.1 Stmt. ¶ 84; Casey Dep. at 10. Amory testified that he gives his son advice but that, ultimately, business decisions are made by Casey. Defs.' Rule 56.1 Stmt. ¶ 98.

It is undisputed that Rell performs residential concrete work on a " smaller scale" than JJJ and that JJJ performs commercial concrete work on a " massive scale" in comparison to Rell. Id. ¶ ¶ 26-27. According to Casey, as a small residential concrete business, Rell does everything from home renovation projects to new constructions. Declaration of Casey Pereira, dated July 18, 2004 (" Casey Decl."), ¶ 12. Some of Rell's larger projects include foundational work for single-family homes, room additions, garage add-ons, pool decks and other repair services to existing concrete features in and around the home. Id. Rell focuses on smaller, single-day residential projects like patios, walkways and concrete footings. Id.

Rell rents office space in Emerson, New Jersey pursuant to a lease agreement with the building's owner, Joe Amaral, to whom Rell makes rental payments. Defs. 56.1 Stmt. ¶ ¶ 33-34. Rell also rents yard space at the 21 Grove Street lot, making rental payments of approximately $7, 000 per year to Rochris (which is owned in part by Amory) for Rell's portion of the yard space. Id. ¶ ¶ 33, 35. As a result, both JJJ and Rell are permitted to use the same yard space pursuant to separate lease agreements with Rochris. Id. ¶ 103. According to Casey's declaration, he runs the day-to-day operations of Rell, and since Rell's workers meet at the yard at 21 Grove Street, that's where he starts most days. Casey Decl. ¶ 5.

The parties dispute whether Rell has an office space at the 21 Grove Street location. According to Defendants and specifically to Casey's deposition testimony and declaration, Rell does not maintain any records or files in the building at 21 Grove Street -- they are all in Emerson, New Jersey, along with Rell's phones and computers. Defs.' 56.1 Stmt. ¶ 36. In addition, Casey uses Rell's office space in Emerson, New Jersey -- which is about a 15-minute drive from 21 Grove Street -- to complete administrative tasks. Id. While Casey does admit to using a " small" room at 21 Grove Street, he maintains that this room is one of the common areas to which all lessees are entitled to use. Id. ¶ 99; Casey Decl. ¶ ¶ 3, 5. Plaintiffs, however, dispute this characterization. Pls.' 56.1 Stmt. ¶ ¶ 24, 27.

Rell's laborers are employed on a job-by-job basis, depending on the availability of work to be performed on any given day. Defs. 56.1 Stmt. ¶ 39. It is undisputed that JJJ and Rell have employed some (at least 12) of the same employees, though they are paid separately for work performed on different jobs. Pls.' 56.1 Stmt. ¶ ¶ 36-37; Defs.' 56.1 Stmt. ¶ ¶ 51, 111-12; Pls.' 56.1 Opp'n Stmt. ¶ ¶ 50-51.

Rell owns its own vehicles, including a 2013 Mercedes Sprinter, a 2013 Nissan Frontier, a 2005 Trailer and a 2012 Chevrolet Tahoe LT. Id. ¶ 44. Rell further leases equipment from Amjack Leasing on a quarterly basis, a company owned by his father Amory. Id. ¶ 45; Pls.' 56.1 Stmt. ¶ 26.

D. Procedural Background

Plaintiffs bring this action to collect delinquent employer contributions pursuant to the Employee Retirement Income Security Act (" ERISA"), 29 U.S.C. § § 1132(a)(3) and 1145, and the Labor-Management Relations Act (" LMRA"), 29 U.S.C. § 185. The Complaint alleges that JJJ and Rell constitute a single employer and alter egos such that both Defendants are jointly and severally liable to the Funds for benefit contributions in an amount to be determined at a court-ordered audit. Plaintiffs move for summary judgment, arguing that Defendants constitute alter egos and/or a single employer as a matter of law and are therefore both bound by the terms of the CBA. Defendants move for summary judgment dismissing all claims on the grounds that they are neither alter egos nor a single employer as a matter of law. For the reasons stated below, the Court finds that there is a genuine issue of material fact on the single employer question. The Court also finds, however, that Plaintiffs have failed to raise a genuine issue of material fact on whether Defendants are alter egos. Accordingly, the Court reports and recommends that Plaintiffs' motion be denied in its entirety and Defendants' motion be granted in part and denied in part.


Federal Rule of Civil Procedure 56(a) provides that a " court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial burden of establishing the absence of any genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). To determine whether the moving party has satisfied this burden, the Court is required to view the evidence and all factual inferences arising from that evidence in the light most favorable to the non-moving party. Doro v. Sheet Metal Workers' Int'l Ass'n, 498 F.3d 152, 155 (2d Cir. 2007); Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005).

Where the movant shows a prima facie entitlement to summary judgment, " the burden shifts to the nonmovant to point to record evidence creating a genuine issue of material fact." Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006). " [T]he nonmovant cannot rest on allegations in the pleadings and must point to specific evidence in the record to carry its burden on summary judgment." Id.; see McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 n.4 (2d Cir. 2006) (" [S]peculation alone is insufficient to defeat a motion for summary judgment."); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001) (" Even where facts are disputed, in order to defeat summary judgment, the non-moving party must offer enough evidence to enable a reasonable jury to return a verdict in its favor."). Summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see Dobbs v. Dobbs, No. 06-CV-6104, 2008 WL 3843528, at *5 (S.D.N.Y. Aug. 14, 2008) (" The Court's goal should be to isolate and dispose of factually unsupported claims.") (internal quotation marks omitted).

With the foregoing principles in mind, the Court now turns to an analysis of Plaintiffs' claims.


A. The Single Employer Doctrine

Under the single employer doctrine, a collective bargaining agreement binding on one employer may be enforced against a non-signatory employer if (1) the two employers constitute a " single employer" and (2) the employees of the companies constitute a single appropriate bargaining unit. See Brown v. Sandimo Materials, 250 F.3d 120, 128 n.2 (2d Cir. 2001). The Court will address each element in turn.

1. Single Employer

" Separate companies are considered a single employer if they are part of a single integrated enterprise." Lihli Fashions Corp. v. NLRB, 80 F.3d 743, 747 (2d Cir. 1996) (citation and internal quotation marks omitted). In determining whether two entities constitute a " single employer, " courts examine four factors enumerated by the Supreme Court: " [1] interrelation of operations, [2] common management, [3] centralized control of labor relations, and [4] common ownership." See Radio & Television Broad. Technicians Local Union 1264 v. Broad. Serv. of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) (per curiam); see also Brown, 250 F.3d at 128 n.2. In the Second Circuit, two additional factors are relevant: " the use of common office facilities and equipment and family connections between or among the various enterprises." Lihli Fashions, 80 F.3d at 747. No single factor is dispositive and not every factor need be present. Id. " Ultimately, single employer status depends on all the circumstances of the case and is characterized by absence of an arm's length relationship found among unintegrated companies." Id. (citation and internal quotation marks omitted). Whether two companies constitute a single employer is a question of fact. Id.

As an initial matter, the Court notes that in an attempt to portray Defendants as a single employer, Plaintiffs mischaracterize some of the evidence in this case. For example, Plaintiffs assert that Casey does not have a financial interest in Rell, despite the fact that Casey testified that he put up " some" of the initial financing. Casey Dep. at 10. Plaintiffs further assert that both Defendants employed Amory's wife as a bookkeeper but the evidence reflects that she worked for Rell only. Defs.' 56.1 Stmt. ¶ ¶ 38, 70; Pls.' 56.1 Stmt. Opp'n ¶ ¶ 38, 70. Similarly, Plaintiffs state that many employees worked for both Defendants, " often with the same supervisor, " DE 36 at 12, yet the record reflects that Niko Markanovich, JJJ's supervisor, worked for Rell for one week only. Deposition of Niko Markanovic, dated May 9, 2014, at 10-12.

Notwithstanding these mischaracterizations, and based upon the Court's independent review of the record, the Court cannot conclude, as a matter of law, that JJJ and Rell are, or are not, a single employer. A single employer relationship finds support in evidence showing, inter alia, that (1) Defendants are owned by members of the same immediate family, i.e., Amory owns JJJ and his daughter owns Rell; [1] (2) Amory's wife (and Lorell and Casey's mother), works as a bookkeeper for Rell; (3) Amory, the owner of JJJ, helped finance Rell in an undisclosed amount and this loan(s) was not documented or repaid; (4) Defendants share up to a dozen employees, a yard where employees report to work, a common space/office, a telephone, a fax machine, an accountant and some suppliers; and (5) JJJ's estimator performed many estimates for Rell free of charge prior to 2013.

On the other hand, there is evidence in the record at odds with a single employer claim, including that (1) while there is a familial relationship between Defendants, Defendants are separately owned; (2) JJJ and Rell's projects never overlap; (3) JJJ works on large, union, commercial projects while Rell works on small, non-union, residential projects; (4) Casey has never worked for JJJ and Amory has never worked for Rell; (5) JJJ has never hired Rell to perform any of its construction work and Rell has never hired JJJ to perform any of its construction work; (6) while Defendants do share up to a dozen employees, these employees are paid separately; (7) JJJ and Rell do not comingle bank accounts; (8) JJJ and Rell have their own separate work vehicles, with their signs identifying the vehicles as either belonging to JJJ or Rell; (9) JJJ and Rell have separate insurance policies and are not named as insureds in each other's policies; and (10) while the companies do share space at 21 Grove Street, Rell also has a separate office fifteen minutes away.

Based on this record, the Court finds that the facts do not point conclusively in either direction. Accordingly, the Court reports and recommends that both parties' motions for summary judgment be denied on the issue of whether Defendants constitute a single employer.

2. Appropriate Bargaining Unit

A finding that separate companies are a " single employer is not enough to bind all the separate companies to the collective bargaining agreements of any one of the companies." Lihli, 80 F.3d at 747. To hold one company to a collective bargaining agreement made by another company, it must also be shown that they " represent an appropriate employee bargaining unit." [2] Id. " When assessing the appropriate bargaining unit, attention 'shifts from the control, structure and ownership of the employer to the community of interests of the employees.'" Ferrara v. Oakfield Leasing Inc., 904 F.Supp.2d 249, 264 (E.D.NY. 2012) (quoting Cuyahoga Wrecking Corp. v. Laborers Int'l Union of North Am., 644 F.Supp. 878, 882 (W.D.N.Y. 1986)). " 'The reason for the appropriate bargaining unit requirement is to protect the rights of non-union employees to representatives of their choice, or to not have union representation at all.'" Id. (quoting LaBarbera v. C. Volante Corp., 164 F.Supp.2d 321, 326 (E.D.N.Y. 2001). In determining whether companies constitute an appropriate bargaining unit, courts look for a " 'community of interests' among the relevant employees, and 'factors such as bargaining history, operational integration, geographic proximity, common supervision, similarity in job function and degree of employee interchange.'" Ferrera v. Professional Players Corp., No. 11-CV-1433, 2013 WL 1210522, at *4 (E.D.N.Y. Feb. 15, 2013) (quoting La Barbera v. Les Sub-- Surface Plumbing, Inc., No. 06--CV--3343, 2008 WL 906695, at *4 (E.D.N.Y. Apr. 3, 2008)), report and recommendation adopted by, 2013 WL 1212816 (E.D.N.Y. Mar. 23, 2013).

Here, there is evidence of employee interchange and operational integration in that as many as a dozen employees worked for both Defendants and both businesses operated out of the same location using the same yard (though Rell's main office arguably exists at a separate location), estimator, telephone and fax machine. On the other hand, while both companies are in the concrete business, the two companies serve completely different customer bases, as Rell performs residential concrete work on a small scale, and JJJ performs commercial concrete work on a massive scale in comparison. In this regard, similarity in job function is hotly disputed. Plaintiffs contend that Defendants' employees perform essentially the same work -- laying concrete -- and the fact that JJJ is involved in larger projects does not diminish the connection. Defendants argue that JJJ's sophisticated commercial projects require a higher level of skill. Moreover, other than the testimony of Niko Markanovich, JJJ's supervisor, that he worked for Rell for one week, there is no evidence of common supervision.

Based on the present record, the Court finds that the evidence is not so one-sided as to preclude a reasonable factfinder from holding in favor of either party on this issue. Accordingly, the Court reports and recommends that Plaintiffs' and Defendants' motions for summary judgment on the single employer doctrine be denied.

B. The Alter Ego Doctrine

" The alter ego doctrine, while having the same binding effect on a non-signatory as the single employer/single unit doctrine, is conceptually distinct." Truck Drivers Local Union No. 807 v. Reg'l Import & Export Trucking Co., 944 F.2d 1037, 1046 (2d Cir. 1991). " The purpose of the alter ego doctrine in the ERISA context is to prevent an employer from evading its obligations under the labor laws 'through a sham transaction or technical change in operations.'" Ret. Plan of the Unite Here Nat'l Ret. Fund v. Kombassan Holdings A.S., 629 F.3d 282, 288 (2d Cir. 2010) (quoting Newspaper Guild of N.Y. v. NLRB, 261 F.3d 291, 298 (2d Cir. 2001)). Specifically, " 'ERISA was enacted to promote the interests of employees and their beneficiaries in employee benefit plans and to protect contractually defined benefits.'" Id. (quoting Leddy v. Standard Drywall, Inc., 875 F.2d 383, 388 (2d Cir. 1989)). Thus, " [t]o protect employee benefits, courts observe 'a general federal policy of piercing the corporate veil when necessary.'" Id. (quoting N.Y. State Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 647 (2d Cir. 2005)).

According to the Second Circuit, " 'the test of alter ego status is flexible, ' allowing courts to 'weigh the circumstances of the individual case, ' while recognizing that the following factors are important: 'whether the two enterprises have substantially identical management, business purpose, operation, equipment, customers, supervision, and ownership.'" Id. (quoting Goodman Piping Prods., Inc. v. NLRB, 741 F.2d 10, 11 (2d Cir. 1984)). " Although perhaps a 'germane' or 'sufficient basis for imposing alter ego status, ' an 'anti-union animus or an intent to evade union obligations' is not a necessary factor." Id. (quoting Goodman, 741 F.2d at 12). In addition, " '[a]lthough the alter ego doctrine is primarily applied in situations involving successor companies, where the successor is merely a disguised continuance of the old employer, it also applies to situations where the companies are parallel companies.'" Id. (quoting Mass. Carpenters Cent. Collection Agency v. Belmont Concrete Corp., 139 F.3d 304, 307 (1st Cir. 1998)).

Here, none of the factors is present in this case. Nothing in the record, for instance, suggests that Defendants share the same management, supervision, equipment, vehicles or customer base. Similarly, Defendants never comingled bank accounts or any other kind of financial accounts. Moreover, the companies are separately owned. Although family connections between two corporations can be used to satisfy the common ownership requirement, that is only true provided the other factors are also satisfied. Mason Tenders Dist. Council Welfare Fund v. Itri Brick and Concrete Corp., No. 96 Civ. 6754, 1997 WL 678164, at *14 (Oct. 31, 1997); see also In re Armen Digital Graphics, Ltd., No. 96 Civ. 5844, 1997 WL 458738 at *7 n.9 (S.D.N.Y. Aug.12, 1997) (" Were courts to assume alter ego status merely from the closely held ownership of two companies by members of the same immediate family, families would be effectively precluded from organizing their business affairs in any but a single corporate entity. Children would be barred from creating companies distinct from those owned by their parents. The alter ego doctrine does not compel these results.").

There is also scant evidence that Defendants share the same business purpose, a factor to be accorded great weight. See Ret. Plan of the Unite Here Nat'l Ret. Fund, 426 F.3d at 650 (" 'The main focus of the [alter-ego] inquiry is to determine whether the two employers are the same business in the same market.'") (quoting Stardyne, Inc. v. NLRB, 41 F.3d 141, 151 (3d Cir. 1994)). In this regard, Plaintiffs, citing the Second Circuit's decision in Newspaper Guild, place much emphasis on the fact that both Defendants are in the concrete business. In Newspaper Guild, the Second Circuit noted that " [i]n the ordinary case, two entities have the same 'business purpose' if they deal in the same product or service." 261 F.3d at 299. The citations immediately following that statement, however, found the same business purpose existed when the companies at issue provided either exactly the same product, worked in exactly the same market, or performed exactly the same service.[3] Here, while both Defendants may lay concrete, that is where the similarity ends. JJ and Rell provide different services to different customers in entirely different markets. JJJ, using high-end commercial equipment, provides only large scale, commercial concrete services to clients such as West Point Hospital, Woodbury Commons, Newark Airport and the Picatinny Arsenal in jobs that take weeks or months to complete. Rell, on the other hand, provides only small, residential concrete services such as room additions, garage add-ons, pool decks and patios in jobs that take a few hours or days to complete. Defendants' projects never overlap, and Defendants do not compete against each other because they do not, and cannot, cater to the same clients. Under these circumstances, the Court finds that the evidence does not support a shared business purpose. See Express Servs., Inc., 426 F.3d at 650 (finding no triable issue of material fact on alter ego issue when companies did not share the same customer base or equipment and were " engaged in different, though related, lines of business within the freight transportation industry."); Lihli, 80 F.3d at 749 (holding two companies not alter egos where they performed different services, used none of the same equipment and had no customers in common).

Plaintiffs additionally argue that the evidence reflects that " Rell was created for the express purpose of siphoning work from the 'union' arm of the family business to the 'non-union' arm of the family business." DE 36 at 8. Although, as noted above, an intent to evade union obligations is not a necessary factor, here there is no evidence that Rell was established as a " sham transaction" designed to avoid the obligations of the CBA or as a manifestation of anti-union animus. In this regard, there is no evidence that Rell was formed to overtake JJJ's customer base. In fact, the undisputed evidence reveals that Defendants never share work and cater to entirely different customers.

In sum, the Court finds that Plaintiffs have failed to raise a genuine issue of material fact on whether Rell is the alter ego of JJJ. Accordingly, the Court reports and recommends that Defendants' motion for summary judgment be granted on the question of alter ego and Plaintiffs' motion be denied.

C. Remaining Contentions

Lastly, Defendants move for summary judgment dismissing Plaintiffs' claims that they are entitled to an audit of JJJ as well as additional contributions on the grounds that JJJ already submitted the entirety of its books and records for review and has yet to receive a demand for any further contributions. Defendants provide no evidentiary support for this statement which is contained in its memorandum of law, and Plaintiffs do not address this contention. Accordingly, the Court reports and recommends that this branch of Defendants' motion be denied at this time, without prejudice to renew.


A copy of this Report and Recommendation is being served by the Court on all parties. Any objections to this Report and Recommendation must be filed with the Clerk of the Court within 14 days. Failure to file objections within this period waives the right to appeal the District Court's Order. See 28 U.S.C. § 636 (b) (1); Fed.R.Civ.P. 72; Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); Beverly v. Walker, 118 F.3d 900, 902 (2d Cir. 1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996).

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