v. OG Plumbing, LLC

Filing 29

MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 2/12/2018: For reasons stated, the Court grants plaintiff's motion for summary judgment [dkt. no. 15]. OG does not dispute the amount sought, so it is deemed admitted. The Clerk is directed to enter judgment in favor of the United States and against OG Plumbing, LLC in the amount of $51,170.46. Mailed notice. (pjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
vs.
OG PLUMBING, LLC,
Defendant.

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Case No. 17 C 3533

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
The federal Occupational Safety and Health Administration cited OG Plumbing,
LLC on four occasions in 2012, 2013, and 2014 for safety violations at worksites in
Chicago. OG did not contest any of the citations administratively or in court. For this
reason, the government contends, the penalties imposed by the citations became a final
administrative determination. The government then filed this suit, seeking to enforce
the penalties, which together with interest, additional penalties for nonpayment, and
fees total a little over $51,000. The government's suit is filed under 29 U.S.C. § 666(l).
The government has moved for entry of summary judgment, so the question is
whether there are any genuinely disputed facts and whether the government is entitled
to judgment as a matter of law. In considering the motion, the Court views the facts in
the light most favorable to OG, the non-moving party, and draws reasonable inferences
in OG's favor.
OG disputes a single issue. It contends that the government has failed to

establish whether and when the citations were served on OG. This is significant, OG
argues, because its time to challenge each citation started to run only when it was
served. If the government cannot establish the date of service, OG contends, then it
has not shown that its time to contest the citations expired. That, in turn, means the
penalties never became final, OG contends.
The government's first argument in response is that none of this matters. It says
that if OG wants to challenge the citations or the penalties they impose, it had to do that
by way of an appeal to the Seventh Circuit—a step that OG never took. In the present
context, this argument seems rather circular. The claimed finality of the penalties
depends on OG's failure to contest them following service of the citations, so if they
were not served, then it would seem that OG would have a straight-faced argument that
the present suit rests on a false foundation—and, in any event, how could OG have
known it had to challenge the citations in court if they were never served?
The Court need not, however, determine who has the better of that point, as the
government has provided evidence that the citations were served. See Pl.'s Mem. in
Support of Motion for Summ. J., Exs. 3, 4, 5. It has provided no direct evidence (such
as an affidavit from whoever delivered or sent the citations), but the law does not
require that. Each of the documents submitted is admissible as a government record or
a record of regularly conducted activity, and each is sufficient to establish that the
citations were served and when—even if OG may have refused to accept one and failed
to claim another. OG has offered no contrary evidence, which is what it would have to
do to avoid summary judgment. In short, the government has offered admissible
evidence showing the fact and timing of service of the citations, and OG has offered

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nothing that gives rise to a genuine dispute on these points. Because OG does not
otherwise contest the government's motion, the government is entitled to summary
judgment.
Conclusion
For these reasons, the Court grants plaintiff's motion for summary judgment [dkt.
no. 15]. OG does not dispute the amount sought, so it is deemed admitted. The Clerk
is directed to enter judgment in favor of the United States and against OG Plumbing,
LLC in the amount of $51,170.46.
Date: February 12, 2018
________________________________
MATTHEW F. KENNELLY
United States District Judge

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