Greater St. Louis Construction Laborers Welfare Fund et al v. Masonry Concepts, Inc.

Filing 21

MEMORANDUM AND ORDER. (see order for details) Having found a genuine dispute of material fact, as well as an absence of evidentiary support for entry of a significant portion of the requested monetary relief, Plaintiffs' motion for summary judg ment will be denied. This case remains set for non-jury trial on the docket commencing at 9:00 a.m. on Tuesday, May 27, 2014. Accordingly, IT IS HEREBY ORDERED that Plaintiffs' motion for summary judgment [Doc. 12 ] is DENIED. Signed by Magistrate Judge Thomas C. Mummert, III on 04/24/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GREATER ST. LOUIS
CONSTRUCTION LABORERS
WELFARE FUND, et al.,
Plaintiffs,
vs.
MASONRY CONCEPTS, INC.,

Defendant.

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Case No. 4:13cv418 TCM

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MEMORANDUM AND ORDER

This matter is before the Court1 on the motion for summary judgment [Doc. 12] filed
against Defendant Masonry Concepts, Inc., (Defendant) for amounts it allegedly owes to
Plaintiff Greater St. Louis Construction Laborers Welfare Fund ("Welfare Fund"), Plaintiff
Construction Laborers Pension Trust of Greater St. Louis ("Pension Trust"), Plaintiff St.
Louis Vacation Fund - Vacation Plan ("Vacation Fund"), and Plaintiff AGC-Eastern
Missouri Laborers' Joint Training Fund ("Training Fund") for allegedly unpaid contributions,
liquidated damages allegedly resulting from the unpaid contributions, accountants' fees
allegedly incurred in performing an audit of Defendant's records, and attorneys' fees
allegedly incurred in pursuing this lawsuit. Defendant filed a brief in opposition to the

1

This matter is before the undersigned United States Magistrate Judge by written consent
of the parties. See 28 U.S.C. § 636(c).
The parties do not dispute, and this Court concludes, that this Court has jurisdiction over this
proceeding pursuant to 29 U.S.C. §§ 1132(e) and 1132(f); 29 U.S.C. § 185(a); and 28 U.S.C. § 1331.

summary judgment motion, to which Plaintiffs2 filed a reply. The parties also filed or
responded to a statement of uncontroverted material facts and filed exhibits in support of
their positions on the summary judgment motion. Upon careful consideration, the Court will
deny the motion.
Background
Based on review of the parties' pleadings, as well as the parties' admissions regarding
Plaintiffs' statement of uncontroverted material facts, and other undisputed evidentiary
material, the record reveals the following undisputed facts.
Plaintiff Welfare Fund, Plaintiff Pension Trust, Plaintiff Vacation Fund, and Plaintiff
Training Fund (collectively, Plaintiff Benefit Funds) are employee benefit plans within the
meaning of Sections 3(1) , 3(3), 502, and 515 of the Employee Retirement Income Security
Act of 1974 ("ERISA"), 29 U.S.C. §§ 1002(1), 1002(3), and 1132.

(Pls.' Statem.

Uncontroverted Material Facts ¶ 1 [Doc. 13], as admitted in Def.'s Reply to Pls.' Statem.
Uncontroverted Material Facts ¶ 1 [Doc. 17].) Plaintiff Unions are labor organizations
representing employees in an industry affecting commerce within the meaning of Sections
2(4), 2(5), 2(6), and 2(7) of the National Labor Relations Act, as amended, 29 U.S.C. §§
152(4), 152(5), 152(6), and 152(7), and Section 301 of the Labor Management Relations Act

2

Plaintiffs are the Welfare Fund and its twelve individual trustees, the Pension Trust and
its twelve individual trustees, the Vacation Fund and its six individual trustees, the Training Fund
and its twelve individual trustees, and Local Union Nos. 42, 53, and 110, Laborers International
Union of North America, AFL-CIO ("Unions"). The individual trustees are alleged to be fiduciaries
within the meaning of Sections 3(21)(A) and 502 of the Employee Retirement Income Security
Act of 1974, as amended, 29 U.S.C. §§ 1002(21)(A) and 1132.
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of 1947 ("LMRA"), as amended, 29 U.S.C. § 185. (Id. ¶ 2.) Defendant is a Missouri
corporation in good standing. (Id. ¶ 3.)
Plaintiff Unions and Defendant are parties to a collective bargaining agreement
("Agreement"), which, in relevant part, requires Defendant to pay supplemental dues, make
monthly fringe benefit contributions to the Plaintiff Benefit Funds, and contribute to the
Mason Contractors Association and the Masonry Institute of Missouri on the basis of all
hours worked by covered employees. (Id. ¶ 5.) That Agreement also requires Defendant to
submit monthly contribution report forms by the 15th of the following month, and imposes
twenty percent liquidated damages on delinquent contributions. (Id.) Additionally, if a
lawsuit is filed to recover unpaid contributions and liquidated damages and results in such
an award, then the parties' Agreement provides that Defendant shall pay interest, accounting
fees, reasonable attorneys' fees, and costs. (Id. ¶ 6.) The Agreement further authorizes the
Benefit Funds to examine Defendant's payroll and related records to determine whether the
required contributions have been made. (Id. ¶ 8.)
Plaintiffs brought this action against Defendant under Section 301 of the LMRA, as
amended, 29 U.S.C. § 185, and Sections 502 and 515 of the ERISA, as amended, 29 U.S.C.
§§ 1132 and 1145, seeking a judgment against Defendant for equitable relief directing it to
submit reports and make payments as required by the parties' Agreement. (Pls.' Compl. [Doc.
1].) Plaintiffs also seek monetary relief for Defendant's delinquent contributions and dues,
for interest on those delinquent amounts, for liquidated damages based on those delinquent
amounts, for reasonable attorney's fees and accounting fees, and for costs. (Id.) In particular,
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Plaintiffs allege that they conducted a financial examination of Defendant's records for the
period from March 1, 2009, through October 1, 2010, and found that Defendant had underreported 1,036.50 hours during that period. (Id. at 4-5.) Plaintiffs request a monetary
judgment in the amount of $18,828.25, consisting of $14,265.78 in untimely contributions,
$3,640.88 in liquidated damages and $921.59 in interest for that period, plus $23,501.95,
consisting of $18,786.66 in untimely contributions and $4,715.29 in liquidated damages, for
August 2012. (Id.) Plaintiffs further seek an award of interest, costs, accounting fees, and
reasonable attorneys' fees, as well as an order directing Defendant to submit reports and
contributions due since August 2012, and requiring Defendant's compliance with the parties'
Agreement. (Id. at 5-6.) Defendant denies liability. (Def'ts.' Answer [Doc. 4].)
By their summary judgment motion, Plaintiffs seek an award totaling $61,502.37,
consisting of $14,265.78 in contributions; $41,508.15 in liquidated damages; $1,376.62 in
interest through September 30, 2013; $2,227.50 in accounting fees; $1,720.00 in attorneys'
fees; and $404.32 in court costs. (Pls.' Mem. Supp. Mot. Summ. J. [Doc. 14] at 4.)
Defendant opposes the motion, urging there exists a genuine dispute of material fact in that
it disagrees with the number of hours for which contributions are due and questions whether
liquidated damages may be assessed under the circumstances and, if so, the amount of those
damages. (Def't Mem. Opposition Pls.' Mot. Summ. J. [Doc. 15].)
Discussion
Summary judgment standard. Rule 56(a) of the Federal Rules of Civil Procedure
mandates the entry of summary judgment if "the movant shows that there is no genuine
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dispute as to any material fact and the movant is entitled to judgment as a matter of law."
MidAmerican Pension and Emp. Benefits Plans Admin. Comm. v. Cox, 720 F.3d 715,
718 (8th Cir. 2013); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)
(discussing prior Rule 56(c), the predecessor to Rule 56(a) of the Federal Rules of Civil
Procedure).
The movant "bears the initial responsibility of informing the district court of
the basis for its motion," and must identify "those portions of [the record] ...
which it believes demonstrate the absence of a genuine issue of material fact."
Celotex Corp.[,] 477 U.S. [at] 323 . . . . [The nonmovant then has the
opportunity to identify specific portions of the record showing there is a
genuine dispute of material fact. See Fed. R. Civ. P. 56(c)(1).] "On a motion
for summary judgment, 'facts must be viewed in the light most favorable to the
nonmoving party only if there is a genuine dispute as to those facts.'" Ricci v.
DeStefano, [557 U.S. 557, 586] (2009), quoting Scott v. Harris, 550 U.S. 372,
380 (2007) (internal quotations omitted). "Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge." Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 . . . (2000), quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 . . . (1986). The nonmovant "must do more
than simply show that there is some metaphysical doubt as to the material
facts," and must come forward with "specific facts showing that there is a
genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 . . . (1986). "'Where the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial.'" Ricci, [557 U.S. at 586], quoting Matsushita, 475 U.S.
at 587.
Torgerson v. City of Rochester, 643 F.3d 1031, 1042-43 (8th Cir. 2011) (en banc) (first
alteration in original). The existence of a factual dispute is not enough alone to avoid entry
of summary judgment; "rather, the dispute must be outcome determinative under the
applicable law." Hammer v. City of Osage Beach, MO, 318 F.3d 832, 837 (8th Cir. 2003)
(citing Anderson, 477 U.S. at 248). "A party opposing a motion for summary judgment must
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show that admissible evidence will be available at trial to establish a genuine issue of
material fact." Millon v. JPMorgan Chase Bank, N.A., 518 Fed. Appx. 491, 496 (8th Cir.
2013) (unpublished opinion) (internal quotation marks omitted) (quoting Churchill Bus.
Credit, Inc. v. Pacific Mut. Door Co., 49 F.3d 1334, 1337 (8th Cir. 1995)). "A dispute is
genuine if the evidence is such that it could cause a reasonable [fact-finder] to return a
verdict [or judgment] for either party; a fact is material if its resolution affects the outcome
of the case." Othman v. City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012)
(citing Anderson, 477 U.S. at 248).
Law Applicable to Request for Unpaid Contributions and Related Relief under the
ERISA. The ERISA permits benefit plan trustees, such as Plaintiffs, to recover unpaid
contributions to benefit plans and, when they are successful, interest on such contributions;
an amount equal to that interest or to liquidated damages in an amount up to twenty percent
of the unpaid contributions, whichever is greater; reasonable attorney's fees; and costs. 29
U.S.C. § 1132(g)(2). Additionally, if the litigation is successful, those fiduciaries may obtain
other legal or equitable relief the Court deems appropriate. Id.
By their summary judgment motion, Plaintiffs first seek monetary relief totaling
$19,238.28, for unpaid contributions during the period starting on March 1, 20093 and

3

The only Agreement available of record is the Agreement effective from March 1, 2010,
through February 28, 2014. See Ex. 1 attached to Aff. Kevin Schell [Doc. 12-3]. The Court will
consider Plaintiffs' request for relief based on unpaid contributions prior to March 1, 2010, because
Defendant does not contest the propriety of Plaintiffs seeking and obtaining relief prior to that date,
and does not counter Schell's averment that Defendant "[a]t all relevant times . . . has been signatory
to a collective bargaining agreement" with Plaintiff Unions. Aff. of Kevin Schell ¶ 2.
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continuing through October 31, 2011. This request is based on an accountant's examination
of Defendant's records that resulted in a determination that the total unpaid contributions,
which consists of $14,265.78 in unpaid contributions for more than 900 hours of work by
twelve identified individuals, plus $3,640.88 in liquidated damages and $1,376.62 in interest
through September 13, 2013, related to those unpaid contributions, was due to Plaintiffs from
Defendant. See Affidavit of John Massa, with attachment [Docs. 12-4 and 12-5]. Defendant
challenged the accountant's assessment of the amount of unpaid contributions, through an
affidavit of Defendant's President, Secretary and sole Director. See Affidavit of Debra A.
Doering [Doc. 16].
Plaintiffs contend that their properly supported summary judgment motion may not
be defeated by Defendant's "self-serving" affidavit, citing Conolly v. Clark, 457 F.3d 872,
876 (8th Cir. 2006). This Court is not persuaded that the "self-serving" nature of Defendant's
affidavit is sufficient to permit entry of summary judgment in Plaintiffs' favor.
The United States Court of Appeals for the Eighth Circuit recently recognized that,
while a litigant's own testimony is often self-serving, "the mere fact that [the litigant]'s
factual testimony is favorable to [the litigant's] legal claim does not render it incompetent."
Argenyi v. Creighton Univ., 703 F.3d 441, 446 (8th Cir. 2013). Rather than rejecting a
litigant's affidavit as "self-serving," the Eighth Circuit concluded the "affidavit must be
considered, and its particular factual allegations scrutinized for 'independent documentary
evidence' to support them.'" Id. (quoting O'Bryan v. KTIV Television, 64 F.3d 1188, 1191
(8th Cir. 1995)). Here, the affidavit of Defendant's President, Secretary, and sole Director
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is sufficient to support the existence of a genuine dispute of material fact precluding entry
of summary judgment, due to the attached document disclosing that Defendant's audit of the
relevant records pertaining to eleven of Defendant's employees revealed a different amount
of hours for which Defendant had not paid contributions. Moreover, in reply to Defendant's
response, Plaintiffs filed a second affidavit of the accountant who had reviewed Defendant's
records. (See Second Aff. of John Massa [Doc. 19-2].) In that affidavit, the accountant
averred he reviewed the information provided by Defendant in response to the audit, and
disagreed with Defendant's position regarding the unpaid contributions. (Id.) Because the
amount of unpaid contributions is a significant portion of the requested monetary judgment,
and determines other items of relief, such as the amount of interest and liquidated damages,
the Court concludes this dispute of fact is material and precludes entry of summary judgment
in favor of Plaintiffs for the period from March 1, 2009, through October 31, 2011.
Additionally, Plaintiffs contend that paragraph seven of their statement of
uncontroverted material facts, as supported by a table attached to the affidavit of Kevin
Schell, establishes that Defendant submitted untimely contributions for the period from
January 2012 through July 2013. Defendant, however, disputed, and did not admit, the
information in that paragraph of Plaintiffs' statement of uncontroverted material facts; and
no evidentiary material of record discloses either how the table provided by Plaintiffs was
created or how that table should be interpreted. Without more, there is no undisputed
evidentiary material available to establish the amount of unpaid contributions, if any, that is
due from Defendant for that period of time.
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Due to the affidavits disclosing a genuine dispute of material fact regarding the
amount of unpaid contributions due from Defendant between March 1, 2009, and October
31, 2011, and the absence of evidentiary material supporting entry of judgment in favor of
Plaintiffs for any subsequent period of time, the Court will deny Plaintiffs' motion for
summary judgment.
CONCLUSION
Having found a genuine dispute of material fact, as well as an absence of evidentiary
support for entry of a significant portion of the requested monetary relief, Plaintiffs' motion
for summary judgment will be denied. This case remains set for non-jury trial on the docket
commencing at 9:00 a.m. on Tuesday, May 27, 2014.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs' motion for summary judgment [Doc. 12]
is DENIED.

/s/Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 24th day of April, 2014.

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