Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tharp v. Perez

United States District Court, N.D. Indiana, Hammond Division

April 5, 2018

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,
v.
IRIS PEREZ d/b/a NEW CONCEPT, Defendant.

          OPINION AND ORDER

          Andrew P. Rodovich United States Magistrate Judge

         This 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 DENIED.

         Background

         The 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 §1145.

         On 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.

         In 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.

         The 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.

         A 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.

         The 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.

         New 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.

         New 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 1, 2017.

         Discussion

         Pursuant 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.

         Summary 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.