Cement Masons Local 527 et al v. Palazzolo Construction, LLC,

Filing 25

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Motion for Partial Summary Judgment is GRANTED. [Doc. 20.] IT IS FURTHER ORDERED that Plaintiffs shall have judgment in their favor with respect to Count II. IT IS FURTHER ORDERED that Defenda nt shall submit its payroll records for an audit of work performed on the 4958 Manchester Road project within 30 days of the date of this Memorandum and Order. Failure to comply with this Order may result in a finding of civil contempt against Defend ant and the imposition of sanctions, including a fine and/or incarceration. IT IS FURTHER ORDERED that Plaintiffs shall effect service of this Memorandum and Order on Defendant by whatever means they believe to be most effective, and shall promptly f ile a certificate of such service. IT IS FINALLY ORDERED that Plaintiffs shall file a status report within 45 days of the date of this Memorandum and Order updating the Court on the status of the audit and whether Plaintiffs intend to move for default judgment on Count I. An Order of Judgment shall accompany this Order. 20 ( Status Report due by 6/30/2017.) Signed by Magistrate Judge Nannette A. Baker on 5/26/17. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CEMENT MASONS LOCAL 527, et al.,
Plaintiffs,
v.
PALAZZOLO CONSTRUCTION, LLC,
Defendant.

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Case No. 4:16-CV-1437 NAB

MEMORANDUM AND ORDER
The parties have consented to the jurisdiction of the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). [Doc. 14.] This matter is before the Court on Plaintiffs’
Motion for Partial Summary Judgment. [Doc. 20.] Defendant has not responded and the time to
do so has passed. For the reasons set forth below, the Court will grant Plaintiffs’ Motion for
Partial Summary Judgment.
I.

Background
Plaintiffs bring this action pursuant to the Employee Retirement Income Security Act of

1974 (ERISA), 29 U.S.C. §§ 1001 et seq., and the Labor Management Relations Act (LMRA),
29 U.S.C. §§ 141 et seq., seeking to enforce a Collective Bargaining Agreement (CBA) between
Plaintiff Cement Masons Local 527 and Defendant Palazzolo Construction, LLC with respect to
a project to be performed by Defendant at 4958 Manchester Road, to begin on or about June 9,
2016. [Doc. 1.] The Complaint contains two counts. Count I seeks an audit regarding work
performed on the project; a judgment for delinquent contributions, plus liquidated damages and
interest thereon; specific performance of Defendant’s obligations to timely submit required
reports and contributions and to pay liquidated damages on late payments; and reasonable

attorneys’ fees and costs. Count II seeks a remittance of ten hours of pay to four members of
Cement Masons Local 527 that were laid off or, in the alternative, a judgment in their favor, as
well as attorneys’ fees and costs. In their motion filed March 10, 2017, Plaintiffs move for
partial summary judgment, seeking a court order directing Defendant to submit its payroll
records for audit as to Count I and a judgment in the amount of $997.12 as to Count II.
On March 27, 2017, the Court entered an order allowing Defendant’s counsel to
withdraw for cause and granting Defendant until April 21, 2017 to retain substitute counsel and
respond to Plaintiffs’ Motion for Partial Summary Judgment. [Doc. 24.] The Court cautioned
that, without an attorney to represent Palazzolo Construction, LLC and file the appropriate
documents in a timely manner, a default judgment may be entered against Palazzolo
Construction, LLC.
In conjunction with their summary judgment motion, Plaintiffs submitted a Statement of
Undisputed Material Facts. [Doc. 21.] Under Local Rule 7-4.01(E), “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.” Defendant has not complied with the Court’s
order to retain substitute counsel, nor has Defendant responded to Plaintiffs’ Statement of
Undisputed Material Facts. Therefore, the Court deems those facts admitted for the purposes of
this Order. See also Jetton v. McDonnell Douglas Corp., 121 F.3d 423, 426 (8th Cir. 1997) (“A
local rule of a district court has the force of law and the parties are charged with knowledge of
the district court's rules the same as with knowledge of the Federal Rules and all federal law.”)
(citations omitted).

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II.

Standard
Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for

summary judgment if all of the information on the record before the court shows “there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”
See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (emphasis added). A fact is only material
if it might affect the outcome of the case under the governing substantial law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Additionally, a “genuine” issue only exists “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Herring
v. Can. Life Assur. Co., 207 F.3d 1026, 1029 (8th Cir. 2000) (citing Anderson, 477 U.S. at 248).
The moving party has the initial burden of clearly establishing the non-existence of any genuine
issue of fact that is material to a judgment in its favor. City of Mt. Pleasant, Iowa v. Assoc. Elec.
Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). Once the moving party discharges this burden,
the burden then shifts to the non-moving party. Anderson, 477 U.S. at 249. The non-moving
party must set forth affirmative evidence and specific facts showing there is a genuine dispute on
an issue of material fact. Id.
The non-moving party “must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). Self-serving, conclusory statements without support are not sufficient to defeat
summary judgment. Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir.
1993). Proof that “some alleged factual dispute” exists between the parties “will not defeat an
otherwise properly supported motion for summary judgment.” Anderson, 477 U.S. at 247. The
non-moving party may not rest on the allegations in its pleadings, but by affidavit and other
evidence, he or she must set forth specific facts showing that a genuine issue of material fact

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exists. Fed. R. Civ. P. 56(c); Herring, 207 F.3d 1026, 1029 (8th Cir. 2000). In passing on a
motion for summary judgment, it is not the court’s role to decide the merits. Anderson, 477 U.S.
at 248. The court should not weigh evidence or attempt to determine the truth of a matter. Id.
Rather, the court must simply determine whether a genuine issue of material fact exists. Bassett
v. City of Minneapolis, 211 F.3d 1097, 1107 (8th Cir. 2000).
III.

Discussion
Plaintiffs have submitted a copy of the “Job Compliance Understanding Agreement”

signed by Defendant on June 9, 2016 under which Defendant agreed to be bound by the Cement
Masons Local 527 CBA for work performed on the 4958 Manchester Road project. [Doc. 21-1.]
Plaintiffs have also submitted a copy of the CBA. [Doc. 21-2.] As Plaintiffs contend, the CBA
requires Defendant to make contributions and file reports based on each hour worked by
employees, provides for 10% liquidated damages on delinquent contributions and attorneys’ fees
and collection costs, and includes the authority to audit Defendant. Defendant has not submitted
the required contribution reports for its work on the 4958 Manchester Road project. [Doc. 21 ¶ 7;
Doc. 20-1 ¶ 7.] Therefore, the Court will order Defendant to submit its payroll records for audit.
As Plaintiffs contend, the CBA further provides that if employees are laid off, Defendant
may pay them that day or send a check postmarked no later than the following workday, and that
if final paychecks are not tendered when due, Defendant must pay two hours of pay at the
straight time rate for each day of delay. On Wednesday, June 15, 2016, Defendant laid off
Cement Masons Local 527 members Bill Maxey, Quinton Thomas, Carlos Escobar, and Jimmie
Cole and their paychecks were not postmarked until June 20, 2016, four days beyond what is
permitted under the CBA. [Doc. 21 ¶¶ 8, 10; Doc. 20-1 ¶¶ 9, 11; Docs. 4-7.] The straight time
rate was $31.16. [Doc. 21 ¶ 12; Doc. 20-1 ¶ 13.] Therefore, the Court finds that Defendant owes

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$249.28 each to Maxey, Thomas, Escobar, and Cole. The Court will enter a judgment in the
amount of $997.12 on Count II.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Partial Summary Judgment is
GRANTED. [Doc. 20.]
IT IS FURTHER ORDERED that Plaintiffs shall have judgment in their favor with
respect to Count II.
IT IS FURTHER ORDERED that Defendant shall submit its payroll records for an
audit of work performed on the 4958 Manchester Road project within 30 days of the date of this
Memorandum and Order. Failure to comply with this Order may result in a finding of civil
contempt against Defendant and the imposition of sanctions, including a fine and/or
incarceration.
IT IS FURTHER ORDERED that Plaintiffs shall effect service of this Memorandum
and Order on Defendant by whatever means they believe to be most effective, and shall promptly
file a certificate of such service.
IT IS FINALLY ORDERED that Plaintiffs shall file a status report within 45 days of
the date of this Memorandum and Order updating the Court on the status of the audit and
whether Plaintiffs intend to move for default judgment on Count I.
An Order of Judgment shall accompany this Order.
Dated this 26th day of May, 2017.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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