Local 520 Employers and Operating Engineers Pension Fund et al v. Fournie Contracting Company, Inc.
ORDER GRANTING MOTION for Summary Judgment (Doc. 12 ) filed by Tim Keeley, Local 520 Operating Engineers Annuity Trust Fund, Chad Goldschmidt, Dale Keller, Henry Rohwedder, Local 520 Employers And Operating Engineers Pension Fund, Local 520 E mployers And Operating Engineers Health And Welfare Fund, Pete Korte, Charles Mahoney, Eugene Keeley, Mark Johnson, Ronald S. Kaempfe, Ken Toennies, David Baxmeyer, Michael Luhr, Steve Smith, Local 520 Operating Engineers Joint Apprenticeship and Training Fund, Local 520 Employers and Operating Engineers Vacation Fund, Kenneth J. Kilian, Michael Parkinson. Signed by Judge Staci M. Yandle on 3/13/18. (bps)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LOCAL 520 EMPLOYERS AND
OPERATING ENGINEERS PENSION
FUND, et al.,
FOURNIE CONTRACTING COMPANY,
Case No. 16-CV-1159-SMY-RJD
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion for Summary Judgment (Doc. 12).
Plaintiffs are related employee benefits plan funds as defined under the Employee Retirement
Income Security Act of 1974 (“ERISA”) as well as trustees of those plans. Defendant Fournie
Contracting Company, Inc. (“Fournie”) is an Illinois corporation which falls under the auspices
of ERISA. (Doc. 1 at ¶ 7, Doc. 9 at ¶7).
Plaintiffs filed the instant action alleging Defendant’s failure to submit timely reports and
contributions pursuant to a collective bargaining agreement, and seeking to recover delinquent
contributions, liquidated damages on late contributions, and attorney’s fees. Defendant filed an
Answer (Doc. 9) and Plaintiffs filed the instant Motion for Summary Judgment on March 16,
2017, requesting liquidated damages on late-paid contributions and attorneys’ fees. Defendant
has not filed a Response to Plaintiffs’ motion, requested additional time under Federal Rule of
Civil Procedure 56(d) to gather information to respond, or made any other request for an
extension to respond.
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Plaintiffs assert that under the applicable collective bargaining agreements, Fournie was
required to submit reports on the amounts of contributions due to the plan funds (as well as
payment of those contributions) by the 10th day of the following month. (Docs. 13 at 1, 12-2 at
¶¶ 5-6). Plaintiffs allege that Fournie was late in filing and paying 14 months’ reports and
contributions. (Doc. 12-2 at ¶ 8).
Section 502(g)(2) of ERISA, 29 U.S.C. §1132(g)(2), provides that a party enforcing
contribution obligations may recover, among other things, liquidated damages provided for
under the plan, reasonable attorney’s fees and costs of the action. Plaintiffs allege that they are
entitled to liquidated damages of 10% ($4,926.38) on the late-paid contributions. (Docs. 13 at 12, 12-2 at ¶¶2, 7, 8-9). They also claim legal fees and costs in the amount of $1000.86. (Doc.
12-1 at ¶5).
Under this Courts Local Rule 7.1(c), failure to file a timely response to a motion may, in
the Court’s discretion, be considered an admission of the merits of the motion. Here, discovery
has proceeded and an audit of Plaintiff’s records has been completed. (Docs. 21, 23). No
response has been filed, and the deadline for doing so elapsed nearly eleven months ago. As
such, the Court deems the merits of Plaintiffs’ Motion for Summary Judgment admitted.
Accordingly, Plaintiff’s Motion for Summary Judgment (Doc. 12) is GRANTED. As the
Motion for Summary Judgment only appears to touch on a subset of the claims asserted, leaving
the question of unpaid contributions, the Court construes it as a motion for partial summary
judgment as provided by F.R.C.P. 56(a). Plaintiffs are AWARDED liquidated damages in the
amount of $4,926.38 and attorney’s fees and costs in the amount of $1000.86. At the conclusion
of this case, judgment will be entered in favor of the Plaintiffs and against Fournie,
incorporating this award and any other relief deemed appropriate at that time.
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IT IS SO ORDERED.
DATED: March 13, 2018
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge
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