Mohammed v. Union Carbide Corp.
| Decision Date | 14 March 1985 |
| Docket Number | Civ. A. No. 83CV-6375-AA. |
| Citation | 606 F. Supp. 252 |
| Parties | Richard MOHAMMED, d/b/a Richard Mohammed Construction Co., Plaintiff, v. UNION CARBIDE CORPORATION, C & H Piping, Inc., a Michigan corporation, Gandol, Inc., a Michigan corporation, James Gandol, an Individual, John A. Cummings, an Individual, Terry L. Cholette, an individual and Kenneth R. Hendrix, an Individual, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
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Jack C. Chilingirian, St. Clair Shores, Mich., for plaintiff.
David G. Chardavoyne, James A. Smith, Karen L. Piper, Bodman, Longley & Dahling, Detroit, Mich., John A. Lygizos, Lygizos & Janhevich, Dearborn, Mich., Gerald J. Young, Young & Gorny, Birmingham, Mich., Gene J. Esshaki, Mary P. Nelson, Abbott, Nicholson, Quilter, Esshaki & Youngblood, P.C., C. Nicholas Revelos, Detroit, Mich., for defendants.
This case is before the court on the motion of defendant Union Carbide for summary judgment, and on the motion of defendant Gandol, Inc., and James Gandol for sanctions pursuant to Fed.R.Civ.P. 11. For the reasons stated herein, both motions are granted.
This case arises out of the expiration of a contract between plaintiff, a provider of excavation and concrete pouring services, and defendant Union Carbide, the purchaser of plaintiff's services. The original complaint was brought in 14 counts1 against Union Carbide, John Cummings, Union Carbide's plant manager for the Ecorse facility at which plaintiff performed construction services for Union Carbide; C & H Piping, Inc. and its principals; Terry Cholette and Kenneth Hendrix; and Gandol, Inc. and its principal, James Gandol.
The parties to Union Carbide's motion for summary judgment appear to agree to the following facts:
Union Carbide operates a facility in Ecorse, Michigan, which separates air into its constituent gases and sells those gases. The facility's major purchaser is Great Lakes Steel, which has a plant that surrounds the Ecorse facility. By agreement between Union Carbide and Great Lakes Steel, the latter supplies personnel to operate the facility and to perform maintenance and construction work on it. Union Carbide cannot use its own operators or select its own outside construction and maintenance contractors unless Great Lakes Steel declines to supply personnel for a particular job.
Plaintiff first worked at the Ecorse facility as subcontractor for C & H Piping, Inc. In April of 1980, plaintiff entered into a one-year time-and-materials contract to provide such excavation and cement work as Union Carbide might request of him, at rates specified in the agreement.
This "time-span" order between plaintiff and Union Carbide was extended for an additional year in April of 1981, and was later extended to August 31, 1982. The time-span order then expired by its terms. At that time, both plaintiff and defendant Gandol had been performing time-span work at the Ecorse facility. Union Carbide has provided evidence by way of deposition testimony that certain Union Carbide officials decided that two such time-span excavation and cement contractors were unnecessary, and that Gandol would be retained because it hired union employees, whereas plaintiff was not a union shop.
Union Carbide contends that the decision to allow plaintiff's time-span order to expire was made by Cummings and Randy Kramer, a Union Carbide purchasing agent stationed in Cleveland. Two other Union Carbide employees also took part in the decision, but Union Carbide steadfastly maintains, and has provided evidence to establish that the decision was made entirely by Union Carbide personnel, without any input or influence by persons outside of the company.
Plaintiff just as steadfastly maintains that other entities, such as Great Lakes Steel and the United Steelworkers of America Local 1299 Union, whom he has recently added as defendants in this case, as well as Gandol and C & H, put pressure on Union Carbide to terminate plaintiff's time-span contract, thereby permitting Gandol to completely replace him. Despite two lengthy extensions of the discovery period by this court, however, plaintiff has failed to apprise the court of any evidence of such a conspiracy between Union Carbide and any of the parties to the original complaint, or either of the parties recently named in the amended complaint.
Union Carbide concedes that the decision to allow plaintiff's time-span contract to expire, and to retain Gandol as the sole time-span contractor, was motivated in large part on Gandol's union status, and plaintiff's lack of union affiliation. It contends that it sought to avoid labor friction at the Ecorse plant that might arise from the presence of non-union laborers working at the same site with union laborers. Such labor friction would cause problems for Union Carbide's customer, Great Lakes Steel, which conducts business with labor organizations such as Local 1299. Despite its concerns about the possibility of such labor friction, Union Carbide continued to employ plaintiff at the Ecorse facility on a "fixed price" basis, whereby plaintiff was asked to quote a price to complete a particular job, rather than seeking payment on an hourly basis.
Plaintiff agrees that his contract was terminated because his company was not a union shop, and further contends that the decision to terminate his contract was affected by an agreement between the various defendants. Plaintiff further points to the apparent contradiction in Union Carbide's decision to terminate his time-span order because of its desire to prevent a mixed, union/non-union labor force at the Ecorse facility, while nonetheless permitting plaintiff and his non-union employees to remain at the facility on a fixed price basis.
Because the procedural history of this action is relevant to the disposition of the motions before the court, it will be recounted here in short summary. The original complaint was filed on October 7, 1983. Subsequently, the depositions of plaintiff, and defendants Cummings and James Gandol were taken. Gandol, Inc. and James Gandol moved for summary judgment on March 9, 1984, arguing that plaintiff had failed to identify the existence of any evidence at his own deposition that would support any of his allegations against those defendants. Plaintiff responded by asserting that he needed additional time to complete discovery in this case, which included deposing various Union Carbide employees, and that summary judgment on the antitrust claims was inappropriate at that stage in the proceedings.
The motion was heard on April 17. The court granted plaintiff's request for an additional 90 days from the date of the hearing in which to conduct discovery. It also granted Gandol's motion in part, however, dismissing the libel and slander claims, ordering consolidation of Counts V and VI (tortious interference with contractual relations), and striking Count X (unfair competition under state law) unless plaintiff amended the complaint to designate the particular statute under which the claim was brought. The court denied the motion with respect to the remaining counts without prejudice to Gandol's rights to renew the motion upon completion of discovery.
On June 14, a month prior to the date when the extended discovery period was scheduled to expire, plaintiff moved for yet another 90 days in which to complete discovery, urging that certain defendants had been remiss in providing him with requested documents, and that certain depositions had not been completed. In an order dated June 25, the court granted the motion to extend the discovery period, and specifically stated that Gandol could renew its motion for summary judgment after September 17.
On July 3, the court entered an order, pursuant to a stipulation by the parties, to dismiss plaintiff's slander and libel claims against C & H Piping, without prejudice.
On October 22, 1984, Gandol, Inc. and James Gandol did renew their motion for summary judgment, again asserting that, notwithstanding the extensive discovery taken in the case at that time, plaintiff had still failed to adduce any evidence that either of the moving defendants had engaged in conduct that would support a claim under any of the theories of liability enumerated in the original complaint. Plaintiff filed a contemporaneous motion to amend the complaint, seeking to add Great Lakes Steel as a party defendant and certain unnamed labor organizations. In response to Gandol's motion for summary judgment, plaintiff submitted a single document, a procurement plan summary sheet prepared by employees of Union Carbide. The plan evinced a desire on the part of its authors to prevent plaintiff from obtaining "fixed-price" awards, because he had been obtaining exorbitant profits as a result of charging Union Carbide union-scale prices, but failing to pay union-scale wages to his employees.
Plaintiff also contended in his response that a Union Carbide employee had testified at deposition that he believed that James Gandol had attempted to bribe him in order to obtain an exclusive time-span order from Union Carbide.
The court concluded that plaintiff had failed to demonstrate the existence of a genuine question of fact concerning any of the material issues of the remaining counts in the original complaint asserted against the Gandol defendants and granted the motion for summary judgment. The court also granted plaintiff's motion to add additional parties to the complaint, but specifically prohibited him from naming Gandol, Inc. or James Gandol in the amended complaint.
Union Carbide has now moved for summary judgment against all of the claims asserted against it in the first amended complaint. Gandol, Inc. and James Gandol have moved for the imposition of sanctions against plaintiff under Fed.R.Civ.P. 11.
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