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.
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.