Carpenters' District Council Of Greater St. Louis and Vicinity et al v. Mitchell

Filing 21

ORDER IT IS HEREBY ORDERED that plaintiffs Carpenters District Council of Greater St. Louis and Vicinity, et al.s motion for summary judgment [Doc. #14] is denied. Denying 14 Motion for Summary Judgment Signed by Honorable Donald J. Stohr on 3/10/09. (JWJ)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION CARPENTERS' DISTRICT COUNCIL OF GREATER ST. LOUIS, ET AL., Plaintiffs, vs. MARK MITCHELL, d/b/a MARK MITCHELL EXTERIORS, Defendant. ) ) ) ) ) ) ) ) ) ) )

No.

4:07CV1174-DJS

ORDER Now before the Court is plaintiffs Carpenters' District Council of Greater St. Louis and Vicinity, et al.'s motion for summary judgment [Doc. #14]. Defendant Mark Mitchell, d/b/a Mark

Mitchell Exteriors, has filed an opposition to plaintiffs' motion. Plaintiffs have not filed a reply, and the time to do so has expired. Accordingly, the motion is ripe for disposition. Standard of Review In considering a motion for summary judgment, the Court must "view all of the evidence in the light most favorable to the nonmoving party and [will] give that party the benefit of all reasonable inferences to be drawn from the facts disclosed in the pleadings." 1993). Reich v. ConAgra, Inc., 987 F.2d 1357, 1359 (8th Cir.

"Summary judgment is appropriate if there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law." Id. "Although the moving party has the

burden of demonstrating the absence of genuine issues of material fact, the `nonmoving party may not rest upon mere denials or allegations, but must instead set forth specific facts sufficient to raise a genuine issue for trial.'" Burchett v. Target Corp.,

340 F.3d 510, 516 (8th Cir. 2003) (quoting Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1107 (8th Cir. 1998)). Facts For purposes of this motion, the Court finds the

following facts.1

Defendant is an individual doing business as Defendant is a siding contractor, who

Mark Mitchell Exteriors.

specializes in the installation of siding of the framework of houses being constructed by homebuilders. fascia and soffit. Defendant also installs

Defendant is party to a collective bargaining

agreement with the Carpenters District Council of Greater St. Louis. The collective bargaining agreement to which defendant is

bound requires the payment of fringe benefit contributions through the purchase of fringe benefit stamps. Plaintiffs state that during the period of May 2005 through August 2007, defendant performed work for Zykan Exteriors. Zykan Exteriors maintained records that reflect 34,835 hours of work performed by defendant. Plaintiffs state that defendant

remitted contributions for only 12,556 hours, leaving a balance of

" All matters set forth in the statement of the movant shall be deemed admitted for purposes of summary judgment unless specifically controverted by the opposing party." E.D.Mo. L.R. 7-4.01(E).

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22,279 hours due for a total of $159,534.47 in unpaid fringe benefit contributions. Plaintiffs base their calculations on an

estimate of 2.4 man hours to install one square of siding, and 0.13 man hours to install a linear foot of soffit or fascia.2 Defendant disputes plaintiffs calculations, and states that Zykan Exteriors has inflated his reported wages on IRS 1099 forms. Further, defendant states that plaintiffs' work averages

are overstated, and that it takes approximately 1.0 man hours to install one square of siding, and 0.05 to 0.066 man hours to install a linear foot of soffit or fascia. See Affidavit of Mark

Mitchell, Doc. #20, pp. 14-15; Affidavit of Shane Leslie, Doc. #20, pp. 16-17. Accordingly, defendant disputes the amount of unpaid fringe benefit contributions that is owed to plaintiffs. Discussion As stated above, in reviewing a motion for summary

judgment, the Court must view all of the evidence in a light favorable to defendant. In this case, it is not disputed that Further, for Zykan

defendant is bound by a collective bargaining agreement. it is not disputed that defendant performed work

Exteriors, which resulted in the accumulation of fringe benefit contributions due to plaintiffs.
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However, the amount of unpaid

Plaintiffs state that Zykan Exteriors produced documents showing the volume of work, i.e., the number of squares of siding and the linear feet of soffit/fascia installed, but that the parties' collective bargaining agreement requires fringe benefit contributions for each hour of work. Accordingly, to compute the fringe benefit contributions due, the work volume needs to be "translated" into work hours.

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fringe benefit contributions is in contention.

To support his

position, defendant has offered evidence (by way of two affidavits) that places in dispute plaintiffs' contributions calculation.

Accordingly, genuine issues of material fact remain for trial, and the Court will deny plaintiffs' motion for summary judgment. See

Hanley v. Adam, 1998 WL 560282, at *9 (N.D. Ill. Aug. 26, 1998) ("[T]he court concludes that [defendant] is not required to produce documentation regarding job classifications and hours to withstand the plaintiffs' summary judgment motion. Because his affidavit is

based on his personal knowledge regarding his employees' job classifications, the court cannot determine whether the audits properly assessed delinquent contributions for covered employees. Thus, genuine issues of material fact preclude the entry of summary judgment...."). For the above stated reasons, IT IS HEREBY ORDERED that plaintiffs Carpenters' District Council of Greater St. Louis and Vicinity, et al.'s motion for summary judgment [Doc. #14] is denied. Dated this 10th day of March, 2009. /s/Donald J. Stohr UNITED STATES DISTRICT JUDGE

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