were run out of the same office; and (4) VMI and VCI shared the same office staff.
First, Plaintiffs contend that, as of October 31, 1995, 100% of VMI's jobs in progress were for VCI, and that, in 1994, three of the four completed jobs, constituting 90% of the finished work, were done for VCI. Additionally, Plaintiffs argue that VCI loaned and advanced significant amounts of money, totaling over $ 200,000, to VMI in less than arms length transactions.
Next, Plaintiffs allege that, for the entire time VMI was in existence and was run out of an office, the address VMI listed on documents was the same as that for VCI. Plaintiffs state that Defendants never produced a copy of any lease agreement for the period when VMI leased office space from Pat and further state that only one rent payment was recorded on VCI's general ledger. Finally, Plaintiffs state that VMI and VCI shared the same office staff from October 1993 until July 1995.
As to VMI's alleged financial dependence on VCI, from 1990-1993, 50% of VMI's work was done for contractors other than VCI. Through October 31, 1995, VMI had completed 18 jobs totaling $ 524,000. VCI was the contractor on only 7 of the 18 jobs. Finally, all advances made by VCI to VMI were repaid.
As Plaintiffs' admitted in their 12(N), for most of VMI's existence, the company was run out of Chuck's home. While VMI may have used VCI's mailing address to enable Nan Hoste to handle VMI's paperwork (a service for which VMI paid VCI), this does not refute the evidence that VMI was located in Chuck's home and later located in an office in the same building occupied by VCI.
As this Court correctly concluded in its initial decision, there is insufficient evidence that VMI was financially dependent on VCI for its continued existence or that the two companies shared the same facilities and functioned jointly on a daily basis to raise a genuine issue of material fact on this factor.
4. Shared Equipment
Plaintiffs reiterate the same arguments advanced in their response to the Defendants' motion for summary judgment, namely, that VCI provided VMI carpenters with equipment and that VCI allowed VMI to use its office equipment. Plaintiffs cite to B.A.F. where the court concluded that this alter ego factor was met because B.A.F. did not have its own equipment, but instead, used the equipment of the non-union general contractor.
The Court reiterates its earlier conclusion in finding that there is no genuine issue of material fact with respect to this alter ego factor. In this case, VMI owns its own equipment, thus distinguishing it from B.A.F. While VMI may have sometimes used VCI's equipment if necessary, this does not establish that VMI was dependent on VCI for all of its equipment or material needs. Additionally, while VMI sometimes used VCI's office equipment, when VMI moved into its own office, it maintained its own phone and fax line, and had a small copier, a fax machine, desks, chairs and a drawing board. (Defendants' 12(M) Statement, P 62). Thus, VMI had its own office and work equipment and the Court appropriately determined that there was no genuine issue of material fact with respect to this factor.
5. Common Ownership
Both parties agreed and this Court concluded in its initial opinion that the common ownership factor was satisfied based on Pat and Chuck Vacala's co-ownership of VMI and Pat Vacala's sole ownership of VCI. No further argument was offered by either of the parties on this issue in connection with the Plaintiffs' motion to reconsider. Thus, the Court's initial decision with respect to this factor stands.
After reviewing the evidence and arguments offered by the Plaintiffs in support of their instant motion, the Court finds no basis to reconsider its December 3, 1996 opinion. Consequently, for all of the reasons discussed above, the Plaintiffs' motion for reconsideration is denied.
MARTIN C. ASHMAN
United States Magistrate Judge
Dated : June 2, 1997.