SERVICE EMPLOYEES INTERNATIONAL UNION NATIONAL INDUSTRY PENSION FUND et al v. BRISTOL MANOR HEALTHCARE CENTER
Filing
42
MEMORANDUM OPINION granting 36 Plaintiffs Motion for Summary Judgment. See document for details. Signed by Judge Rudolph Contreras on 1/28/2016. (lcrc1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SERVICE EMPLOYEES INTERNATIONAL :
UNION NATIONAL INDUSTRY PENSION :
FUND, et al.,
:
:
Plaintiffs,
:
:
v.
:
:
BRISTOL MANOR HEALTHCARE
:
CENTER, INC.,
:
:
Defendant.
:
Civil Action No.:
12-1904 (RC)
Re Document No.:
36
MEMORANDUM OPINION
GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Service Employees International Union National Industry Pension Fund is an
“employee benefit plan” and a “multiemployer plan” under the Employee Retirement Income
Security Act of 1974 (ERISA).1 The Fund provides pension benefits to eligible employees of
contributing employers. Defendant Bristol Manor Healthcare Center, Inc. is one of the Fund’s
contributing employers. Claiming that Bristol Manor failed to pay the Fund contributions,
interest, liquidated damages, and audit documents required under the applicable collective
bargaining and trust agreements, the Fund and its Trustees brought suit against Bristol Manor
under ERISA and the Labor Management Relations Act of 1947 (LMRA).2
1
Pub. L. No. 93-406, §§ 3(3), 3(37), 88 Stat. 829, 833, 839 (codified as amended at 29
U.S.C. §§ 1002(3), 1002(37)).
2
Pub. L. No. 80-101, 61 Stat. 136 (codified as amended at 29 U.S.C. §§ 141–197).
Plaintiffs have now moved for summary judgment on their claims for unpaid
contributions, interest, liquidated damages, outstanding remittance reports, and attorney’s fees
and costs. Because Bristol Manor does not, in its opposition to Plaintiffs’ motion, show a
genuine dispute as to any material fact impacting Plaintiffs’ claims or requested remedies, the
Court will grant the Plaintiffs’ motion for summary judgment.3
II. FACTUAL BACKGROUND
A. Bristol Manor’s Contribution Obligations to the Fund
Defendant Bristol Manor is a New Jersey corporation. Pls.’ Statement of Material Facts
¶ 3, ECF No. 36 [hereinafter Pls.’ Statement]; Def.’s Resp. to Pls.’ Statement of Undisputed
Material Facts ¶ 3, ECF No. 37-2 [hereinafter Def.’s Resp.]. In 2010, Bristol Manor entered a
collective bargaining agreement with 1199 SEIU United Healthcare Workers East, New Jersey
Region. See Pls.’ Statement Ex. 1, at 8, 40, ECF No. 36-1 [hereinafter Collective Bargaining
Agreement].4
The collective bargaining agreement required Bristol Manor to make contributions to the
Fund based on the number of paid hours worked by employees covered by the agreement. See id.
at 31. Covered employees included “C[ertified] N[ursing] A[ssistant]s, dietary, housekeeping,
recreational aides, L[icensed] P[ractical] N[urse]s, and all other employees excluding
3
The Court will also grant Plaintiffs’ request for the Court to retain jurisdiction of this
case for the limited purpose of adjudicating any unpaid contributions documented in remittance
reports Bristol Manor must still produce. See Pls.’ Mot. Summ. J. 1, ECF No. 36 (requesting that
the Court retain jurisdiction).
4
Because this exhibit includes both the collective bargaining agreement and a later
addition to the agreement, it is not consecutively paginated throughout. When citing the
collective bargaining agreement, therefore, the Court cites to the page numbers automatically
generated by ECF.
2
professional employees, registered nurses, cooks, confidential, office clerical employees,
supervisors, watchmen and guards.” Id. at 8. For contribution purposes, paid hours worked
excluded overtime pay, allowances given to employees to aid them in furnishing and maintaining
their own uniforms, and pay in recognition of unused sick leave. Id. at 31.
Under the collective bargaining agreement, Bristol Manor also agreed to be bound to the
trust agreement establishing the Fund, and to the Fund’s collection policies. See id. at 33. See
generally Pls.’ Statement Ex. 2, ECF No. 36-2 [hereinafter Trust Agreement]; Pls.’ Statement
Ex. 3, ECF No. 36-3 [hereinafter Collections Policy]. The trust agreement affirmed Bristol
Manor’s obligation to send required contributions to the Fund, accompanied by any reports the
Fund might require. Trust Agreement Art. III, § 3.1.
An “employee benefit plan” and “multiemployer plan” under ERISA, the Fund provides
pension benefits to eligible employees of contributing employers. Am. Compl. ¶ 4, ECF No.13;
Pls.’ Statement ¶ 1; Def.’s Resp. ¶ 1; see also 29 U.S.C. §§ 1002(3), 1002(37). On April 30,
2009, the Fund issued a notice announcing that it was in “critical status,” as defined under the
Pension Protection Act of 2006 (PPA).5 See Pls.’ Statement Ex. 4, at 2–3, ECF No. 36-4
[hereinafter Critical Status Notices].6 The PPA requires plans in critical status to adopt a
rehabilitation plan that, among other things, imposes surcharges on contributing employers. 29
U.S.C. § 1085(e)(1), (7); Critical Status Notices 1–2. Accordingly, the Fund adopted its
rehabilitation plan in November 2009. See Pls.’ Statement Ex. 5, at 1, ECF No. 36-5 [hereinafter
Rehabilitation Plan Notice].
5
Pub. L. No. 109-280, sec. 202(a), § 305(b)(2), 120 Stat. 780, 869–70 (codified at 29
U.S.C. § 1085(b)(2)).
6
Because this exhibit includes notices of critical status from multiple years, it is not
consecutively paginated throughout. Thus, as with the collective bargaining agreement, the Court
cites to the page numbers automatically generated by ECF.
3
Bristol Manor negotiated its collective bargaining agreement in 2010, the year after the
Fund reached critical status and adopted its rehabilitation plan. Hence, the 2010 collective
bargaining agreement set Bristol Manor’s contribution rates “in accordance with the Pension
Fund Preferred Schedule” detailed in the fund’s rehabilitation plan. Collective Bargaining
Agreement 33; see also Rehabilitation Plan Notice (discussing the rehabilitation plan’s
“Preferred” and “Default” schedules for employer surcharges). Starting on April 1, 2010, the
collective bargaining agreement required Bristol Manor to contribute to the Fund an amount
equal to 2.2% of its hourly salary payments to covered employees. See Collective Bargaining
Agreement 31. The next year, on April 1, 2011, Bristol Manor’s contribution amount increased
to 2.37% of hourly salary payments. See id. And on April 2, 2012, the contribution amount
became 2.55% of hourly salary payments. See id. In later years, the rehabilitation plan’s
Preferred Schedule provided for additional increases. See Rehabilitation Plan Notice App. B, at
3.
B. The Fund’s Collection Procedures
The Fund’s “Statement of Policy for Collection of Delinquent Contributions” set
procedures for collecting Bristol Manor’s contributions. See Collections Policy. That policy
declared that contributions are due “by the 15th day of the month following the month in which
the work was performed for which the contributions are owed.” Id. § 2.1. Supporting remittance
reports had to accompany the contributions. Id. § 2.2; see also Trust Agreement Art. III, § 3.1
(“Each Employer . . . shall make such reports to the Fund as may be required by the Trustees.”).
Contributions were not timely made unless they were accompanied by these supporting
remittance reports. Collections Policy § 2.2.
4
C. Additional Remedies Available to the Fund for Late or Unpaid Contributions
The Fund’s trust agreement and collection policy declared that, if Bristol Manor did not
submit its contributions and remittance reports by the due dates set each month, the Fund could
collect interest and liquidated damages on Bristol Manor’s delinquent contributions, as well as
attorney’s fees and costs if a lawsuit or other legal action was filed. See Trust Agreement Art. III,
§ 3.2; Collections Policy §§ 2.4, 5.1–5.4. The Fund’s collection policy also specified that “[t]he
obligations to pay interest, liquidated damages and fees chargeable under this policy are
contractual in nature and independent of the provisions of ERISA Section 502(g).” Collections
Policy § 5.5; cf. 29 U.S.C. § 1132(g) (stating, in the codified version of ERISA section 502(g),
that in actions for delinquent contributions, a court shall award prevailing plans their unpaid
contributions, interest on the unpaid contributions, additional interest or liquidated damages,
attorney’s fees and costs, and other legal or equitable relief the court deems appropriate).
a. Interest
Under the Fund’s collection policy, Bristol Manor was required to pay interest on
contributions “not received by the end of the month in which they are due.” Collections Policy
§ 2.4. This meant that, typically, the Fund provided “a 15-day grace period prior to assessing
interest on amounts owed.” Anderson Decl. ¶ 21, ECF No. 36-6. When an interest payment was
required, the collections policy specified that interest should be “calculated from the due date for
the delinquent contributions through and including the date payment is actually received ty the
Fund Office.” Id. § 5.1. The collections policy set the interest rate at ten percent (10%) per
annum. Id. If a month’s interest was calculated to be less than one dollar, however, the
collections policy excepted that month’s interest from being charged. Id. § 2.4.
5
b. Liquidated Damages
The collection policy also allowed the Fund to claim liquidated damages from Bristol
Manor “[i]f contributions and supporting remittance report(s) are not received by the 15th day of
the month following the month in which contributions are due.” Id.; see also Trust Agreement
Art. III, § 3.2 (giving the Fund the power to assess “liquidated damages (which . . . shall not be
deemed to be a penalty) as the Trustees deem appropriate” when the Fund receives contributions
after their due date). Accordingly, the Fund typically provided “a 30-day grace period to
employe[r]s before assessing liquidated damages.” Anderson Decl. ¶ 22. In cases, such as this
one, in which “a lawsuit or other legal action is filed,” the collections policy set the amount of
liquidated damages as the greater of (1) the interest on the late contributions, as calculated under
the collections policy, or (2) “20% of the delinquent contributions.” Collections Policy § 5.2.
c. Attorney’s Fees and Costs
Lastly, the collection policy entitled the Fund to its attorney’s fees and costs incurred in
collection efforts against delinquent employers. See id. §§ 5.3, 5.4.
D. Bristol Manor’s Alleged Late and Unpaid Contributions
Between May 2010 and June 2015, the Fund’s records show that it received many of
Bristol Manor’s required contributions after the dates on which the contributions were due. See
Anderson Decl. Exs. A–C (listing the Fund’s due dates and receipt dates for Bristol Manor’s
contributions); Jasinski Decl. Ex. A, ECF No. 37-4 (same). The Fund’s records also show that
Bristol Manor often made contributions in amounts less than the amounts the Fund calculated
were actually due; these alleged underpayments occurred with increasing frequency over time.
See Anderson Decl. Exs. A–C (listing the amounts Bristol Manor paid as well as the amounts the
Fund calculated to be due); Jasinski Decl. Ex. A (same). Accordingly, the Fund assessed interest
6
and liquidated damages on Bristol Manor’s allegedly late and unpaid contributions. See
Anderson Decl. Exs. A–C (including columns for interest, liquidated damages, and additional
interest due); Jasinski Decl. Ex. A (same, though the numbers in the columns differ).
III. PROCEDURAL HISTORY
On November 26, 2012, Plaintiffs filed suit under ERISA and the LMRA to collect the
unpaid contributions, interest, and liquidated damages Bristol Manor allegedly owed and to
obtain audit documents from Bristol Manor. See Compl. 1–2, 6, ECF No. 1. For more than one
year afterward, little progress was made in this case because of difficulties serving Bristol Manor
and the parties’ inactivity during their settlement negotiations. See SEIU Nat’l Indus. Pension
Fund v. Bristol Manor Healthcare Ctr., 307 F.R.D. 37, 39–40 (D.D.C. 2014) (recounting this
case’s history).
On January 13, 2014, Plaintiffs filed an amended complaint that sought the same relief
but alleged more specific damages. See Am. Compl. 1–2, 8–10. After Bristol Manor failed to
respond within twenty-one days of service as required by Federal Rule of Civil Procedure
12(a)(1)(A), Plaintiffs filed for an entry of default, the clerk entered the default, and Plaintiffs
filed a motion for partial default judgment. See Pls.’ Aff. for Clerk’s Entry of Default, ECF No.
18; Default, ECF No. 19; Pls.’ Mot. Partial Default J., ECF No. 20. On its review of the matter,
the Court found that Bristol Manor did not willfully default, that setting aside the entry of default
would not prejudice Plaintiffs, and that Bristol Manor asserted a meritorious defense to
Plaintiffs’ claims. SEIU Nat’l Indus. Pension Fund, 307 F.R.D. at 41–43. Accordingly, the Court
vacated the entry of default, denied Plaintiffs’ motion for default judgment, and allowed the case
to proceed to resolution on the merits. Id. at 43.
7
The parties then conducted discovery over a six-month period. See Scheduling Order,
ECF No. 32 (setting the discovery schedule). Plaintiffs now move for summary judgment on
their claims against Bristol Manor. See Pls.’ Mot. Summ. J., ECF No. 36. As before, Plaintiffs
seek judgment on all known outstanding contributions Bristol Manor owes, as well as liquidated
damages and interest. Pls.’ Mem. P. & A. Supp. Mot. Summ. J. 1, ECF No. 36. Plaintiffs allege
that both ERISA and the Fund’s trust agreement and collections policy authorize their requested
damages. See id. at 8 (citing 29 U.S.C. § 1132(g)(2)). Plaintiffs also seek attorney’s fees, court
costs, as well as injunctive relief in the form of an order requiring Bristol Manor to submit
missing remittance reports for June 2015. Id. Lastly, Plaintiffs ask that the Court retain
jurisdiction over the matter to order Bristol Manor to pay any amounts due based on the June
2015 reports, as well as any additional attorney’s fees and costs accrued. Id.7
IV. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, a court must 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). A “material” fact is one
capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a
reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380
(2007). The inquiry under Rule 56 is essentially “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson, 477 U.S. at 251–52.
7
Because Bristol Manor has produced all missing audit documents, Plaintiffs no longer
seek audit documents from Bristol Manor. See Pls.’ Mem. P. & A. Supp. Mot. Summ. J. 2 n.1.
8
The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial
burden of identifying portions of the record that demonstrate the absence of any genuine issue of
material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-movant
must point to specific facts in the record that reveal a genuine issue that is suitable for trial. See
Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 324. The non-movant may not rest upon mere
allegations or denials but must instead present affirmative evidence. Laningham v. U.S. Navy,
813 F.2d 1236, 1241 (D.C. Cir. 1987) (citing Anderson, 477 U.S. at 257).
In considering a motion for summary judgment, a court must “eschew making credibility
determinations or weighing the evidence,” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.
2007), and all underlying facts and inferences must be analyzed in the light most favorable to the
non-movant, see Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered without
any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d
671, 675 (D.C. Cir. 1999).
V. ANALYSIS
A. Liability
In their summary judgment motion, Plaintiffs seek judgment on two claims: (1) one for
payment of Bristol Manor’s unpaid contributions, with associated interest and liquidated
damages owed to the Fund; and (2) another for an order requiring Bristol Manor to submit
missing remittance reports. See Pls.’ Mem. P. & A. Supp. Mot. Summ. J. 1–2. Because Bristol
Manor’s response to Plaintiffs’ motion lacks any argument opposing liability, see Def.’s Opp’n
Pl.’s Mot. Summ. J. 1–4, ECF No. 37, and because the Court’s “independent scrutiny confirms
9
fatal shortfalls in the evidence necessary to support a verdict in [Bristol Manor’s] favor,” Grimes
v. District of Columbia, 794 F.3d 83, 95 (D.C. Cir. 2015), the Court finds Bristol Manor liable
for both claims.
1. Late and Unpaid Contributions
ERISA unambiguously provides that “[e]very employer who is obligated to make
contributions to a multiemployer plan . . . under the terms of a collectively bargained agreement
shall . . . make such contributions in accordance with the terms and conditions of . . . such
agreement.” 29 U.S.C. § 1145.8 This provision “makes a federal obligation of an employer’s
contractual commitment to contribute to a multiemployer pension fund.” Flynn v. R.C. Tile, 353
F.3d 953, 958 (D.C. Cir. 2004). Thus, an employer who fails to make contributions in
accordance with a collective bargaining agreement to the multiemployer pension fund is liable
under both ERISA and the contract memorialized in the collective bargaining agreement. See,
e.g., Int’l Painters & Allied Trades Indus. Pension Fund v. Zak Architectural Metal & Glass
LLC, 635 F. Supp. 2d 21, 25 (D.D.C. 2009); Serv. Emps. Int’l Indus. Pension Fund v. Aliquippa
Cmty. Hosp., 628 F. Supp. 2d 166, 172 (D.D.C. 2009).
Here, Plaintiffs’ submissions indicate that Bristol Manor has breached its obligations to
contribute to the Fund by making late contributions and by failing to pay certain contributions.
The Fund is a multiemployer pension plan under ERISA, see Pls.’ Statement ¶ 1, and Bristol
Manor was obligated to make contributions to the Fund in amounts set by the collective
bargaining agreement, see Collective Bargaining Agreement 31. Bristol Manor was also
obligated under the collective bargaining agreement to pay those contributions “by the 15th day
8
29 U.S.C. § 1145 is the codified version of ERISA section 515. See Multiemployer
Pension Plan Amendments Act of 1980, Pub. L. No. 96-364, sec. 306, § 515, 94 Stat. 1208, 1295
(codified at 29 U.S.C. § 1145) (amending ERISA and adding section 515).
10
of the month following the month in which the work was performed for which the contributions
[were] owed.” Collections Policy § 2.1; see also Collective Bargaining Agreement 33 (stating
the Bristol Manor agreed to be bound by the Fund’s collection policies). Because the Fund’s
records show that it received many contributions late and in amounts less than those the Fund
calculated were actually due, Plaintiffs have met their initial burden to identify evidence that
they believe shows the absence of any genuine issue of material fact affecting Bristol Manor’s
liability. See Anderson Decl. Exs. A–C. See generally Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986) (explaining that the summary judgment movant has the initial burden to identify
portions of the record that it believes show the absence of a genuine issue of material fact).
In response, Bristol Manor makes no arguments disputing its liability for late and unpaid
contributions. See Def.’s Opp’n Pl.’s Mot. Summ. J. 1–4 (arguing only that there remains a
“genuine dispute regarding the issue of damages”).9 The record likewise reveals no evidence
exonerating Bristol Manor for late and unpaid contributions. See, e.g., Jasinski Decl. ¶¶ 9–16,
ECF No. 37-3 (addressing damages only). Thus, because no specific facts in the record reveal a
genuine issue suitable for trial, the Court finds Bristol Manor liable to Plaintiffs on this claim.
See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
2. Remittance Reports
Bristol Manor’s collective bargaining agreement also obligated it to submit remittance
reports each month along with its contributions to the Fund. Collections Policy §§ 2.1–2.2;
Collective Bargaining Agreement 33 (binding Bristol Manor to the Fund’s collection policies).
9
In an earlier filing, Bristol Manor claimed that it “does not owe the money to which
Plaintiffs assert an entitlement.” Opp’n Pls.’ Mot. Partial Default J. 8, ECF No. 26. In its
summary judgment opposition, however, Bristol Manor did not renew that claim. See Def.’s
Opp’n Pl.’s Mot. Summ. J. 1–4.
11
The Fund’s declaration and accompanying exhibits indicate that the Fund lacks remittance
reports from June 2015. See Anderson Decl. ¶ 9; id. Exs. A–C. Thus, on the issue of Bristol
Manor’s liability for these reports, Plaintiffs have also met their initial burden to identify
evidence that they believe shows the absence of any genuine issue of material fact.
Again, Bristol Manor makes no arguments disputing liability, see Def.’s Opp’n Pl.’s Mot.
Summ. J. 1–4, and no evidence provided to the Court casts doubt on Bristol Manor’s liability for
the missing reports. The Court therefore finds Bristol Manor liable to Plaintiffs for the June 2015
remittance reports.
B. Damages
1. Framework for Calculating Damages
Because the Fund’s damages for Bristol Manor’s late and unpaid contributions arise
under both ERISA and the collective bargaining agreement, the Court begins its damages
discussion by reviewing the damages framework applicable here.
When “judgment in favor of the plan is awarded” in a multiemployer pension plan’s
action to collect unpaid contributions, ERISA requires the court to award the plan certain
remedies:
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of—
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan in an amount not in excess of
20 percent . . . of the amount determined by the court under subparagraph (A),
(D) reasonable attorney’s fees and costs of the action, to be paid by the
defendant, and,
(E) such other legal or equitable relief as the court deems appropriate.
29 U.S.C. § 1132(g)(2). Under the statute, “interest on unpaid contributions shall be determined
by using the rate provided under the plan.” Id.
12
Bristol Manor’s collective bargaining agreement entitles the Fund to the same categories
of damages as those in § 1332(g)(2). See Collective Bargaining Agreement 33 (declaring that, if
Bristol Manor defaulted or became delinquent, it would be liable for “interest, liquidated
damages, and all costs of collection including reasonable attorney’s and accounting fees.”);
Collections Policy §§ 2.4, 5.1–5.3.
The collective bargaining agreement also goes further than ERISA in three ways. First,
although the ERISA statute incorporates the contractual interest rate, it does not allow interest on
all delinquent contributions—only ones unpaid at the time suit is brought. See 29 U.S.C.
§ 1132(g)(2) (allowing interest on the “unpaid contributions” only). The collective bargaining
agreement, in contrast, contemplates interest on any delinquent contributions, including those
paid in full when suit is brought, if Bristol Manor did not pay those contributions in the month in
which they were due. See Collections Policy §§ 2.4, 5.1.
Second, just as with statutory interest, ERISA allows double interest or liquidated
damages under § 1332(g)(2)(C) just for contributions that were unpaid at the time suit was
brought. See 29 U.S.C. § 1332(g)(2)(C) (allowing liquidated damages based on the amount
calculated as “unpaid contributions”); Holland v. Bibeau Constr. Co., 774 F.3d 8, 18 (D.C. Cir.
2014) (noting “authority from six other circuit courts of appeals concluding that liquidated
damages apply only to contributions that are unpaid as of the time a plan files suit”). But the
collective bargaining agreement allows liquidated damages for any delinquent contributions,
including those that were paid when suit was brought, if Bristol Manor did not pay those
contributions by the fifteenth day of the month after the month in which they were due. See
Collections Policy §§ 2.4, 5.2.
13
Third, in the calculation of a liquidated damages award, the collective bargaining
agreement starts with all delinquent contributions—not just unpaid contributions—and applies
an interest rate or multiplies by twenty percent. See Collections Policy § 5.2 (stating that
liquidated damages are equal to the greater of (1) the interest on the delinquent contributions, as
calculated under the collections policy, or (2) “20% of the delinquent contributions.” (emphasis
added)). Because total delinquent contributions can far exceed total unpaid contributions,
liquidated damages awards under Bristol Manor’s collective bargaining agreement may exceed
those under ERISA. See, e.g., Anderson Decl. Ex. A (calculating unpaid contributions as
$14,219.20 and liquidated damages as $14,214.90, which is nearly 100% of the unpaid
contributions and thus goes beyond liquidated damages available under ERISA’s 20% rate).
Because the Fund’s possible contractual damages exceed its possible ERISA damages,
one can assess the Fund’s damages by using just the collective bargaining agreement’s
framework.10 The Court now turns to that assessment.
2. The Parties’ Submissions
As damages for Bristol Manor’s late and unpaid contributions, Plaintiffs claim
$48,962.63 in unpaid contributions, interest, and liquidated damages, along with attorney’s fees
10
The Court is aware of one court of appeals decision holding that § 1332(g)(2) preempts
remedies that would otherwise be available (e.g. contractual remedies such as those under the
collective bargaining agreement here). Carpenters & Joiners Welfare Fund v. Gittleman Corp.,
857 F.2d 476, 478–79 (8th Cir. 1988). But because Bristol Manor does not raise this argument,
the Court deems it waived. See Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013)
(“[U]ndeveloped arguments . . . are deemed waived.”).
Furthermore, at least three other circuits have held that § 1332(g)(2) does not preempt
contractual damages available under federal common law, which governs the interpretation of
ERISA plans. See Operating Eng’rs Local 139 Health Benefit Fund v. Gustafson Constr. Corp.,
258 F.3d 645, 645–55 (7th Cir. 2001); Mich. Carpenters Council Health & Welfare Fund v. C.J.
Rogers, Inc., 933 F.2d 376, 389–90 (6th Cir. 1991); Idaho Plumbers & Pipefitters Health &
Welfare Fund v. United Mech. Contractors, Inc., 875 F.2d 212, 216–17 (9th Cir. 1989).
14
and costs. Pls.’ Mem. P. & A. Supp. Mot. Summ. J. 9; Anderson Decl. ¶¶ 18–25. They support
their damages claim with three spreadsheets, one for each of three classes of Bristol Manor
employees covered by the collective bargaining agreement: Certified Assistant Nurses (CANs),
dietary and housekeeping employees, and recreational employees. See Anderson Decl. Exs. A–C.
Declarations made by the Fund’s Contribution Compliance Manager authenticate the three
spreadsheets. See Anderson Decl.; Suppl. Anderson Decl., ECF No. 40. Each spreadsheet
includes information about Bristol Manor’s contributions to the Fund for work performed in
April 2010 through June 2015. See id. The spreadsheets tabulate
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(H)
(I)
The contributions’ due dates,
The dates on which the Fund received Bristol Manor’s contributions,
The number of days (if any) elapsing between the contributions’ due date
and the dates they were received,
The employee hours worked during the relevant month,
The amount of contributions Bristol Manor paid,
The additional payments (if any) Bristol Manor made,
The amount of contributions the Fund calculated were due for each month,
Information about Bristol Manor’s contribution rate for each month, and
Calculations of Bristol Manor’s unpaid contributions, interest, and
liquidated damages, as calculated on August 4, 2015.
See id. The sum of the “contributions due,” “interest,” “liquidated damages,” and “add[itiona]l
interest due” calculated in each spreadsheet, see id., is $48,962.63, the amount of damages
Plaintiffs request, see Pls.’ Mot. Summ. J. 1.
In response, Bristol Manor argues that “genuine issues of material fact persist as to the
amount of damages, making summary judgment inappropriate.” Def.’s Opp’n Pl.’s Mot. Summ.
J. 2. Bristol Manor alleges that the Fund’s damages are “based on mere speculation or
guesswork” because the Fund did not provide “specific support” documenting the payroll
numbers used to calculate the contributions due, nor “explanation supporting the large amounts
of liquidated damages claimed.” Id. at 2–3. Additionally, Bristol Manor charges the Fund with
“inconsistent calculations of alleged amounts owed,” as compared to previous spreadsheets the
15
Fund provided Bristol Manor. Id.; see also Jasinski Decl. Ex. A (reproducing spreadsheets
similar to the Fund’s, but with differing amounts of “liquidated damages” and “add[itiona]l
interest due”).
The Fund’s reply addressed Bristol Manor’s call for “specific support” by providing a
“sample of the month to month reports and contributions for the period of December 2013
through May 2015.” Pls.’ Reply Supp. Mot. Summ. J. 5 n.1, ECF No. 39; see Suppl. Anderson
Decl. Exs. 1–2, ECF Nos. 39-1, 39-2, 39-3, 39-4. Bristol Manor did not request an opportunity to
file a sur-reply responding to this data.
3. No Genuine Dispute of Material Fact
As noted above, see supra Part IV, after a summary judgment movant produces evidence
showing the absence of any genuine issue of material fact, the non-movant must present
affirmative evidence revealing a genuine issue that is suitable for trial. See Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986); Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir.
1987). When damages under an ERISA multiemployer pension plan are in dispute, an employer
opposing summary judgment must likewise “point to specific facts in the record to demonstrate a
genuine issue for trial.” See Flynn v. Dick Corp., 565 F. Supp. 2d 141, 147 (D.D.C. 2008). As
with liability, Plaintiffs here have met their initial summary judgment burden on damages, and
Bristol Manor’s opposition inadequately responds.
The spreadsheets supporting Plaintiffs’ claimed damages take the form of summaries
admissible in evidence under Federal Rule of Evidence 1006. See Anderson Decl. Exs. A–C.
Under Rule 1006, a party “may use a summary, chart, or calculation to prove the content of
voluminous writings, recordings, or photographs that cannot be conveniently examined in court.”
Fed. R. Evid. 1006. Evidence under Rule 1006 must summarize underlying documents so
16
voluminous that comprehension would be “difficult” and “inconvenient,” though not necessarily
“literally impossible.” United States v. Hemphill, 514 F.3d 1350, 1358 (D.C. Cir. 2008) (quoting
United States v. Bray, 139 F.3d 1104, 1109–10 (6th Cir. 1998)). In addition, “the [underlying]
documents themselves must be admissible; the [underlying] documents must be made reasonably
available for inspection and copying; the summary must be accurate and nonprejudicial; and the
witness who prepared the summary should introduce it.” United States v. Fahnbulleh, 752 F.3d
470, 479 (D.C. Cir. 2014) (citing Hemphill, 514 F.3d at 1358).
The Fund’s spreadsheets meet this standard. They summarize “[Bristol Manor’s] account
with the SEIU Pension Fund, including the remittance reports that [Bristol Manor] has provided
to the Fund, the contributions that [Bristol Manor] has remitted to the Fund, the dates on which
the aforementioned reports and contributions were received, and the interest and liquidated
[damages] that [were] assessed on any underpaid or late paid contributions.” Anderson Decl.
¶ 17. Plaintiffs have produced “a significant sample” of these underlying documents, which
covers the period between December 2013 and May 2015, and which totals nearly two hundred
pages of documentation. Pls.’ Reply Supp. Mot. Summ. J. 5 n.1; see Suppl. Anderson Decl.
Exs. 1–2, ECF Nos. 39-1, 39-2, 39-3, 39-4. The documents underlying the Fund’s spreadsheets
are thus so “voluminous” that comprehension would be difficult and inconvenient.
The spreadsheets meet the other Rule 1006 admissibility requirements as well. Bristol
Manor does not appear to dispute the admissibility of the spreadsheets’ underlying documents,
for it argued that Plaintiffs should have produced “specific support” for the figures in their
spreadsheets. See Def.’s Opp’n Pl.’s Mot. Summ. J. 3. The underlying documents would have
been available to Bristol Manor in discovery, and the record indicates that even without
discovery Bristol Manor had access to many of the documents because Bristol Manor itself
17
provided the remittance reports to the Fund. See Pls.’ Reply Supp. Mot. Summ. J. 5 n.1; see, e.g.,
Suppl. Anderson Decl. Ex. 1, at 2–8, ECF No. 39-1 (reproducing a remittance report created by
Bristol Manor and submitted to the Fund).11 If questions about the spreadsheets’ accuracy exist,
the spreadsheets are still admissible “[e]ven if the calculations are mistaken,” because
“admissible evidence may be unpersuasive and a defendant has the opportunity to rebut it.”
Hemphill, 514 F.3d at 1359. And the spreadsheets are introduced and authenticated by the person
who prepared them. See Anderson Decl. ¶ 17; Suppl. Anderson Decl. ¶¶ 3–7.
Because the Fund’s spreadsheets fall squarely under Rule 1006’s ambit, they may be used
“to prove the content” of the underlying documents. See Fed. R. Evid.1006. Thus, where Bristol
Manor alleges Plaintiffs do not “provide any sort of specific support” for the underlying data,
Bristol Manor’s argument falls flat. See Def.’s Opp’n Pl.’s Mot. Summ. J. 3. Even though Bristol
Manor accuses Plaintiffs of “summarily stat[ing] the amounts they believe are owed” and
“expect[ing] Bristol Manor and the Court to take the alleged amounts owed on their face,” Rule
1006 allows Plaintiffs to do so. If Bristol Manor believes the summary evidence to be inaccurate,
then the burden falls on Bristol Manor to rebut it with affirmative evidence of its own. See
Hemphill, 514 F.3d at 1359; Laningham, 813 F.2d at 1241.
Bristol Manor’s rebuttal evidence is, however, wholly inadequate. Bristol Manor has not
produced its own estimate for the appropriate amount of damages. See Def.’s Opp’n Pl.’s Mot.
Summ. J. 1–4. Nor has Bristol Manor produced a version of Plaintiffs’ spreadsheets that Bristol
Manor claims is accurate. See Jasinski Decl. ¶ 12 (describing spreadsheets with different figures
from Plaintiffs’ spreadsheets, but declining to claim that the alternative spreadsheets are
11
The Supplemental Anderson Declaration’s exhibits are not consecutively paginated, so
the Court cites to the page numbers automatically generated by ECF.
18
accurate). Moreover, Plaintiffs correctly note that, because the spreadsheets Bristol Manor
produced were provided to Bristol Manor by the Fund during settlement negotiations, they are
inadmissible under Federal Rule of Evidence 408. See Pls.’ Reply Supp. Mot. Summ. J. 4. See
generally Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited to . . . dispute a
fact cannot be presented in a form that would be admissible in evidence.”); Fed. R. Evid. 408(a)
(declaring inadmissible “a statement made during compromise negotiations about the claim”
when a party seeks to “disprove the . . . amount of a disputed claim”).
In sum, Bristol Manor has produced no admissible evidence contradicting Plaintiffs’
spreadsheets, nor any colorable argument calling the spreadsheets’ accuracy into doubt. It
therefore has not met its burden to point to specific facts in the record that reveal a genuine issue
suitable for trial. See Fed. R. Civ. P. 56(c)(1); Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986).
4. Damages Awardable
When a defendant does not produce any evidence demonstrating a genuine dispute of
material fact, no genuine issues exist for trial, the Court proceeds to decide whether the
undisputed facts establish that the plaintiffs are entitled to judgment as a matter of law. See, e.g.,
Ruffin v. New Destination, LLC, 773 F. Supp. 2d 34, 38–39 (D.D.C. 2011). Here, Plaintiffs’
spreadsheets are the only admissible evidence offered to show the appropriate total amount of
unpaid contributions, interest, and liquidated damages to award Plaintiffs. The preponderance of
the evidence thus weighs in favor of awarding Plaintiffs the unpaid contributions, interest, and
liquidated damages they request: $48,962.63. See generally CIGNA Corp. v. Amara, 563 U.S.
421, 444 (2011) (applying the “preponderance of the evidence” standard, which is “the default
19
rule for civil cases,” to ERISA cases). The Court will therefore enter judgment in the amount of
$48,962.63 to the Fund.
The collective bargaining agreement also entitles the Fund to an award of attorney’s fees
and costs. See Collective Bargaining Agreement 33; Collections Policy § 5.3–5.4. Attorney’s
fees will be assessed “at a reasonable hourly rate (which rate shall be no less than the hourly rate
charged to the Fund for such services) for all time spent by legal counsel in collection efforts.”
Collections Policy § 5.3. Accordingly, the Court will direct the parties to submit briefing on the
appropriate award of fees and costs.
C. Equitable Relief
Bristol Manor has made no arguments opposing Plaintiffs’ request for outstanding
remittance reports for the month of June 2015, nor any arguments opposing Plaintiffs’ request
for this Court to retain jurisdiction until the resolution of any amounts due based on the June
2015 data. See generally Def.’s Opp’n Pl.’s Mot. Summ. J. 1–4. Because Plaintiffs have shown
they are entitled to the missing remittance reports, see supra Part V.A.2, the Court will grant
Plaintiffs the relief they request. See generally 29 U.S.C. § 1132(g)(2) (allowing the Court to
award “such other legal or equitable relief as the court deems appropriate”).
VI. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for summary judgment is GRANTED. An
order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: January 28, 2016
RUDOLPH CONTRERAS
United States District Judge
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