United States District Court, N.D. Indiana, Hammond Division
David Tharp, Board of Trustees Chairman, and Doug Robinson, Board of Trustees Secretary, o/b/o INDIANA/KENTUCKY/OHIO REGIONAL COUNCIL OF CARPENTERS PENSION FUND; et al., Plaintiffs,
IRIS PEREZ d/b/a NEW CONCEPT, Defendant.
OPINION AND ORDER
P. Rodovich United States Magistrate Judge
matter is before the court on the Motion for Partial Summary
Judgment and Designation of Evidence [DE 28] filed by the
defendant, Iris Perez d/b/a New Concept, on July 18, 2017.
For the following reasons, the motion is
plaintiffs, David Tharp, Board of Trustees Chairman, and Doug
Robinson, Board of Trustees Secretary, o/b/o
Indiana/Kentucky/Ohio Regional Council of Carpenters Pension
Fund, et al., have requested relief under the
Employee Retirement Income Security Act of 1974, as amended,
29 U.S.C. § 1001, et seq. (ERISA), specifically
§§ 502 and 515 of ERISA, 29 U.S.C. §1132 and
December 29, 2009, New Concept signed a Memorandum of
Agreement (MOA) with Indiana/Kentucky/Ohio Regional Council
of Carpenters (Union) to pay union benefits on carpentry
work. New Concept is a signatory to a collective bargaining
agreement (CBA) with the Union and is bound by the
plaintiffs' Trust Funds' Agreements and Declarations
of Trust. New Concept was required to make certain payroll
deductions on flooring projects. The agreement permitted the
plaintiffs' designee to perform payroll and related
record audits to confirm compliance with the reporting and
payment obligations concerning the amount of fringe benefits.
December 2015, a payroll audit was conducted on New
Concept's payroll records on behalf of the Carpenters
Pension Fund, Health & Welfare Fund, Annuity Fund, and
Apprenticeship Fund (Four Trust Funds) for the period of
January 1, 2013 through September 30, 2014. Joan Forthofer,
an auditor at LM Henderson & Company LLP, conducted the
first audit and identified 4, 192.42 variance hours, which
resulted in $67, 530.80 in delinquent contributions owed,
plus interest, liquidated damages, and audit fees. The
plaintiffs have claimed that additional
deductions/contributions owed to the Union raised the total
to $81, 516.28, excluding attorneys' fees and costs.
parties discussed the basis for deleting line items from the
first audit. New Concept indicated that a number of line
items were outside the CBA. Therefore, New Concept deleted 3,
351.92 hours from the first audit report. New Concept has
claimed that the amount that was owed on the first audit
totaled $15, 047.27, and the plaintiffs are in agreement.
second payroll audit was conducted by Forthofer for the
period of October 1, 2014 through December 31, 2016. The
audit identified 4, 473.46 variance hours and $78, 377.37 in
delinquent contributions owed plus interest, penalties, and
audit fees for a total due of $103, 331.11. The plaintiffs
have claimed that additional contributions and deductions
raised the total demand to $120, 930.15, excluding
attorneys' fees and costs.
plaintiffs have alleged in Count I of the Amended Complaint
that New Concept is in violation of §§ 502 and 515
of ERISA and 29 U.S.C. § 185 for failing to pay the
delinquent contributions and contractually required interest
and liquidated damages owed for the period of January 1, 2013
through March 1, 2016 to the plaintiffs' Trust Funds.
Count II of the Amended Complaint has alleged that New
Concept is in breach of its contractual obligations by
failing to pay the delinquent contributions to the Union for
the months of January 1, 2013 through September 30, 2014.
Concept has claimed that the two audits failed to account for
the difference between covered and non-covered work. New
Concept is a full service flooring company that also performs
ceramic flooring, concrete services, and terrazzo
restoration. New Concept has asserted that a bulk of audit
entries should be deleted because they contained work that
was performed outside the jurisdiction of the CBA. Therefore,
New Concept has indicated that its total amount due is $18,
097.08 for 997.25 hours. The plaintiffs have asserted that
Forthofer reviewed New Concept's motion and the 52
exhibits and determined that there were items in the second
audit that could be deleted. After her modifications, the
revised second audit identified 534.68 variance hours and $9,
370.19 in delinquent contributions owed.
Concept filed the motion for summary judgment along with the
declaration of Iris Perez, the owner of New Concept, and the
declaration of Charissa Perez, the bookkeeper for New
Concept. The plaintiffs filed a response in opposition on
September 18, 2017, and New Concept filed a reply on December
to Federal Rule of Civil Procedure 56(c), summary judgment is
proper only if it is demonstrated that “there is no
genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986); Garofalo v. Vill. of Hazel
Crest, 754 F.3d 428, 430 (7th Cir. 2014); Kidwell v.
Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012);
Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir.
2009). A fact is material if it is outcome determinative
under applicable law. The burden is upon the moving party to
establish that no material facts are in genuine dispute, and
any doubt as to the existence of a genuine issue must be
resolved against the moving party. Adickes v. S.H. Kress
& Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 1610, 26
L.Ed.2d 142, 155 (1970); Stephens, 569 F.3d at 786.
If the non-movant bears the ultimate burden of persuasion on
an issue at trial, the requirements are not as onerous for
the moving party. Modrowski v. Pigatto, 712 F.3d
1166, 1168 (7th Cir. 2013). Under this circumstance, the
moving party can either come forward with affirmative
evidence negating an element of the opponent's claim or
by asserting that the nonmoving party has insufficient
evidence to succeed on its claim. Modrowski, 712
F.3d at 1169.
judgment may be entered against the non-moving party if it
“is unable to ‘establish the existence of an
essential element to [the party's] case, and on which
[that party] will bear the burden of proof at trial . . .
.'” Kidwell, 679 F.3d at 964 (quoting
Benuzzi v. Bd. of Educ., 647 F.3d 652, 662 (7th Cir.
2011) (quoting Celotex, 477 U.S. at 322)).
“[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment.” Blythe
Holdings, Inc. v. DeAgnelis, 750 F.3d 653, 656 (7th Cir.
2014) (quoting Anderson v. Liberty ...