Employers and Operating Engineers Local 520 Pension Fund et al v. Sherrell Construction, Inc.

Filing 27

ORDER granting 23 Motion for Summary Judgment: The Court finds the plaintiffs are entitled to summary judgment against Sherrell in the total amount of $22,325.65 for contributions and liquidated damages, plus attorneys fees and court costs of $682.00, for a total of $23,007.65. FURTHER, the Court DIRECTS the Clerk to enter judgment reflecting the same. Signed by Judge David R. Herndon on 10/18/2016. (dsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Employers and operating
Engineers local 520 et al.,
Plaintiff,
vs.
SHERRELL CONSTRUCTION, INC,
Defendant.

No. 16-cv-213-DRH-SCW
ORDER

HERNDON, District Judge:
Plaintiffs, Employers and Operating Engineers Local 520, et al. (“plaintiffs”
or “Local 520”), filed the instant lawsuit pursuant to the Employee Retirement
Income Security Act (ERISA), 29 U.S.C. §1132 and pursuant to the Labor
Management Relations Act, 29 U.S.C. §185 ("LMRA"), against defendant, Sherrell
Construction, Inc. (“Sherrell”), seeking to collect delinquent fringe benefit
contributions, union dues and liquidated damages. Currently before the Court is
plaintiffs' motion for summary judgment. Sherrell has failed to respond to the
motion. The Court may, in its discretion, construe a party's failure to file a timely
response as an admission of the merits of the motion, and the Court will do so in
this case. Local Rule 7.1(c). Accordingly, the Court departs from the customary
practice of construing facts in the light most favorable to the non-moving party,
and instead admits all properly supported facts set forth in the record. See, e.g.,

Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).
The following facts and claims are undisputed:

Sherrell is party to a collective bargaining agreement with Operating
Engineers Local 520 which requires the payment of fringe benefit contributions
for each hour of covered work, requires the submission of monthly report forms,
provides for the payment of ten percent (10%) liquidated damages on delinquent
contributions, and requires the payment of the plaintiffs’ attorneys’ fees by
delinquent employers.
Sherrell executed the prior collective bargaining agreement, but not the
current one. However, Sherrell has employed union members and has submitted
fringe benefit reports under the contract for the current period. The report form
states that the submission of the report makes the employer a signatory party to
the collective bargaining agreement.
The record shows that Sherrell has been delinquent in the payment of its
fringe benefit contributions. Specifically, Sherrell submitted its contribution
reports without payment for the months of July, August and December 2015, and
therefore owes $17,319.71 in contributions. Sherrell paid its contributions late
for April, August, September, October, November and December 2014 and April
and June 2015. For the period of April 2014 through December 2015, Sherrell
owes liquidated damages of $5,005.94, for a total of $22,325.65.
In addition, the collective bargaining agreement provides for the payment of
plaintiffs’ attorneys’ fees and court costs. Plaintiffs’ have incurred fees and costs of
$682.00.

For the foregoing reasons, plaintiffs are entitled to a summary judgment
against defendant Sherrell Construction, Inc. in the total amount of $22,325.65
for contributions and liquidated damages, plus attorneys’ fees and court costs of
$682.00, for a total of $23,007.65.
Accordingly, the Court finds the plaintiffs are entitled to summary judgment
against Sherrell in the total amount of $22,325.65 for contributions and
liquidated damages, plus attorneys’ fees and court costs of $682.00, for a total of
$23,007.65. FURTHER, the Court DIRECTS the Clerk to enter judgment
reflecting the same.
IT IS SO ORDERED.
Signed this 18th day of October, 2016.

Digitally signed by Judge
David R. Herndon
Date: 2016.10.18 11:19:55
-05'00'
United States District Judge