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MOYERS v. FRANK P. BAUER MARBLE CO.

United States District Court, Northern District of Illinois, E.D


February 11, 1983

E. JEFFERSON MOYERS, ROBERT P. LE VOY, JOSEPH KAPCHECK, JR. AND FRANK P. BAUER, AS TRUSTEES OF MARBLE SETTERS' HELPERS AND POLISHERS LOCAL 102 WELFARE FUND, PLAINTIFFS,
v.
FRANK P. BAUER MARBLE CO., AN ILLINOIS CORPORATION, AND FRANK P. BAUER, INDIVIDUALLY, DEFENDANTS.

The opinion of the court was delivered by: Aspen, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiffs in this case, trustees of Marble Setters' Helpers and Polishers Local 102 Welfare Fund (the "Trustees") sued Frank P. Bauer Marble Co. and Frank P. Bauer individually, under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., alleging that defendants failed to make monthly health and welfare contributions to the Welfare Fund as required by a collective bargaining agreement and a multi-employer plan. Jurisdiction is asserted pursuant to 29 U.S.C. § 1132(e)(1).*fn1 Presently pending is the Trustees' motion for summary judgment. For reasons set forth below, the Trustees' motion is granted in part and denied in part.

In deciding motions for summary judgment, it must be emphasized that the party moving for summary judgment has the burden of clearly establishing that no genuine issues of material fact exist, and that he or she is entitled to judgment as a matter of law. Cedillo v. International Association of Bridge & Structural Iron Workers, Local Union No. 1, 603 F.2d 7, 10 (7th Cir. 1979). Doubts as to the existence of material issues of fact must be resolved against the moving party. Moutoux v. Gulling Auto Electric, Inc., 295 F.2d 573, 576 (7th Cir. 1961). With this in mind, we turn to an examination of the instant controversy.

In their answer to the Trustees' complaint, defendants admit that Frank P. Bauer Marble has been subject to collective bargaining agreements which require it to make monthly health and welfare contributions to the Welfare Fund when its employees work pursuant to the terms of the collective bargaining agreement. Defendants also admit that Bauer Marble has been subject to a Welfare Fund Trust Agreement and Welfare Plan, which require employers to make continuing and prompt monthly payments to the Welfare Fund on behalf of each employee. The Trustees allege that beginning around January, 1980, Bauer Marble failed to make contributions to the Welfare Fund.

According to an audit of July 8, 1982, Bauer Marble was shown to be indebted to the Welfare Fund in the amount of $9,050.83 through June 30, 1982. Pursuant to the collective bargaining agreement, contributions to the Welfare Fund received after the due date are assessed liquidated damages,*fn2 which in the instant case amount to $7,064.81. In response to the Trustees' motion for summary judgment, the affidavit of Frank P. Bauer declared that

  The audit reports are substantially correct,
  however, the amounts due to the plaintiff are
  solely the obligation of the defendant, FRANK P.
  BAUER CO., an Illinois corporation and not of
  FRANK P. BAUER individually.

Section 515 of ERISA provides that

  Every employer who is obligated to make
  contributions to a multiemployer plan under the
  terms of the plan or under the terms of a
  collectively bargained agreement shall, to the
  extent not inconsistent with law, make such
  contributions in accordance with the terms and
  conditions of such plan or such agreement.

29 U.S.C. § 1145. While Bauer Marble denied that there were no genuine issues of material fact in the instant case entitling plaintiffs to summary judgment, Frank P. Bauer's affidavit conceded the correctness of the audit reports provided by plaintiffs; defendants offered no other evidence to oppose plaintiffs' motion. It is thus apparent that there are no material issues of fact concerning Bauer Marble's liability to plaintiffs. As a result, summary judgment against Bauer Marble is appropriate. Allen v. Civitello, 529 F. Supp. 46, 48 (N.D.Ill. 1981); Huge v. Reid, 468 F. Supp. 1024, 1027-28 (N.D.Ala. 1979), aff'd, 615 F.2d 916 (5th Cir. 1980).

Summary judgment as to Count II, in which plaintiffs sued Frank P. Bauer individually, raises other issues. Plaintiffs assert that Bauer was the alter ego of Bauer Marble, and that this Court should ignore the corporate entity of Bauer Marble and hold Bauer individually liable for failing to make proper contributions to the Welfare Fund. However, in support of their motion for summary judgment, plaintiffs offered no support for the allegations concerning Bauer in their complaint. Defendants, in response, declare that plaintiffs' motion for summary judgment fails to "set forth any facts or evidence relating to the possible liability to the Plaintiffs, and he therefore moves that he be dismissed as a party defendant in this matter." Plaintiffs have clearly failed to meet their burden of establishing that no genuine issues of material fact exist concerning this issue, thus rendering summary judgment inappropriate as to Frank P. Bauer.

Therefore, plaintiffs' motion for summary judgment against Bauer Marble in the amount of $16,115.64 is granted; summary judgment against Frank P. Bauer is denied. On or before February 18, 1983, the Trustees are directed to submit to this Court an affidavit and judgment order detailing the appropriate amount of interest on this judgment as provided in the Act, and the reasonable attorneys' fees and costs attributable to this lawsuit.*fn3 The Trustees on this date shall also file a statement with the Court indicating whether they will be pursuing the claim against Frank B. Bauer as set forth in Count II. On or before February 23, 1983, the defendants may file any response they deem appropriate to the aforementioned submissions by the Trustees. The status hearing in this case is hereby reset for February 25, 1983, at 10:00 a.m. It is so ordered.*fn4


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