Greater St. Louis Construction Laborers Welfare Fund et al v. KSG Enterprises, LLC

Filing 19

MEMORANDUM AND ORDER re: IT IS HEREBY ORDERED that plaintiffs' motion for summary judgment againstdefendant KSG Enterprises, LLC [Doc. # 9 ] is granted. A Judgment in accordance with this Memorandum and Order will be enteredseparately.. Signed by District Judge Carol E. Jackson on 2/13/15. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

GREATER ST. LOUIS CONSTRUCTION
LABORERS WELFARE FUND, et al.,
Plaintiffs,
vs.
KSG ENTERPRISES, LLC,
Defendant.

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No. 4:14-CV-873 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motion for summary judgment
against defendant KSG Enterprises, LLC.

On February 2, 2015, plaintiffs filed a

supplemental memorandum and new exhibits in support of their motion. Defendant
has not filed a response to the motion and the time allowed for doing so has expired.
I.

Background1

Plaintiffs are four employee benefit plans (the Pension, Vacation, Welfare, and
Training funds), their trustees (collectively, the plans), and Local Unions Nos. 42, 53,
and 110, Laborers International Union of North America, AFL-CIO (the union). On
August 3, 2004, defendant KSG Enterprises, LLC (KSG), executed an agreement to be
bound by the collective bargaining agreement (CBA) negotiated between the union and
the Site Improvement Association through March 1, 2009. Defendant also agreed to
be bound by all subsequent CBAs unless it gave proper notice of termination. Pls. Exs.
1 and 2[Docs. #9-4 and #9-5]. Defendant has not provided the required notice and
thus was bound by the subsequent CBA in force between March 1, 2009 and March 1,

1

As a result of defendant’s failure to respond, all matters set forth in plaintiffs’
statement of uncontroverted facts are deemed admitted. E.D. Mo. L.R. 4.01(E).

2014. Kevin Schell Aff. ¶¶7-9 and Pl. Ex. 3 [Docs. #9-3 and #9-6]. Plaintiffs bring
this action pursuant to Section 301 of the Labor Management Relations Act of 1974,
as amended, 29 U.S.C. § 185, and Section 502 of the Employee Retirement Income
Security Act of 1974, as amended, 29 U.S.C. § 1132, alleging that KSG failed to file
reports and make timely contributions to the plans as required under the terms of the
CBA.
II.

Legal Standard

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered if the moving party shows “that there is no genuine dispute
as to any material fact and the movant is entitled to a judgment as a matter of law.”
In ruling on a motion for summary judgment the court is required to view the facts in
the light most favorable to the non-moving party and must give that party the benefit
of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing
v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the burden of
showing both the absence of a genuine issue of material fact and its entitlement to
judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Once the moving party has met its burden, the non-moving party may not rest on the
allegations of his pleadings but must set forth specific facts, by affidavit or other
evidence, showing that a genuine issue of material fact exists. United of Omaha Life
Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir. 2006) (quoting Fed. R. Civ. P. 56(e)).
Rule 56 “mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will

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bear the burden of proof at trial.” Celotex Corporation v. Catrett, 477 U.S. 317, 322
(1986).
III.

Discussion

ERISA provides that employers shall make contributions when required by the
terms of a CBA.

29 U.S.C. § 1145.

Employers who fail to make the required

contributions may be liable for the unpaid contributions, liquidated damages, attorney’s
fees, and costs. 29 U.S.C. § 1132(g)(2). The CBA at issue here requires defendant
to make contributions to the funds for each hour worked by employees covered by the
agreement. §§ 5.03 - 5.06. Failure to make timely contributions subjects defendant
to liquidated damages equal to 20% of the unpaid contributions, interest,payroll
examinations, court costs, and attorney’s fees. Id. § 5.10 - 5.11.
The accounting firm of Wolfe-Nilges-Nahorski conducted a payroll examination
of defendant for the period of January 1, 2009 through August 31, 2013. John Massa
Aff. [Doc. #9-1]. Based on that examination, it was determined that defendant owed
$99,954.19 in unpaid contributions, $19,991.06 in liquidated damages, and $3,938.03
in interest through December 31, 2013, for a total of $123,883.28. The cost for
completing the payroll examination was $1,683.00.

In their supplemental

memorandum, plaintiffs state that the parties subsequently agreed to changes in the
payroll examination that reduced the amounts owed by defendant. Janine M. Martin
Amended Aff. [Doc. #18-1].
Based on the documentation and affidavits submitted by the plaintiffs, the Court
finds that defendant KSG was bound at all relevant times by a valid CBA and that it
breached its obligations by failing to timely pay the required contributions. Plaintiffs
have established that KSG is liable to them for $81,067.24 in unpaid contributions,

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$16,213.57 in liquidated damages, and $3,328.94 in interest, for a total of
$109,251.15.

Defendant is also liable for $1,683.00, the cost for the payroll

examination.
Plaintiffs request attorneys’ fees in the amount of $6,503.50. The supplemental
affidavit of attorney Janine M. Martin, submitted in support of this request, supports
an award for attorneys’ fees in the amount of $6,122.00.2 The Court finds that the
hourly rates and hours expended are reasonable. In addition, the firm paid $400.00
for the filing fee and $54.90 for service of process, for a total of $454.90 in costs.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion for summary judgment against
defendant KSG Enterprises, LLC [Doc. #9] is granted.
A Judgment in accordance with this Memorandum and Order will be entered
separately.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

Dated this 13th day of February, 2015.

2

Ms. Martin states that her firm’s standard hourly billing rates are $180.00 for
partners’ services, $170.00 for associates’ services, and $90.00 for paralegal and legal
assistant services. According to her supplemental affidavit, Ms. Martin expended 1.6
hours as an associate ($272.00)and 31.5 hours as a partner ($5,670.00); partner
Sherrie A. Schroder expended 0.1 hours ($18.00); legal assistant Jamie C. Buckley
expended 1.0 hour ($90.00); and paralegal Christine M. Dothage expended 0.8 hours
($72.00).
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