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CHICAGO DIST. COUNCIL OF CARPENTERS PENSION FUND V

October 31, 1994

CHICAGO DISTRICT COUNCIL OF CARPENTERS PENSION FUND, CHICAGO DISTRICT COUNCIL OF CARPENTERS WELFARE FUND, and the CHICAGO AND NORTHEAST ILLINOIS DISTRICT COUNCIL OF CARPENTERS APPRENTICE AND TRAINEE PROGRAM FUND, Plaintiffs,
v.
SUNSHINE CARPET SERVICES, INC., and TCB CARPET SERVICES, INC, DALE DAVIS, DIANE DAVIS, and LEXINGTON HOMES, Defendants. TRACY GROUP INC; KOECKRITZ INTERNATIONAL, INC., Deponent



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court are the parties' cross motions for summary judgment. For the following reasons, the cross motions are, respectively, granted in part and denied in part.

 FACTS1

 This suit concerns the liability for contribution payments which plaintiffs claim defendants owe as a part of an agreement with the Carpenter's Union and under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. The plaintiffs are the Chicago District Council of Carpenters Pension Fund, the Chicago District Council of Carpenters Welfare Fund, and the Chicago and Northeast Illinois District Council of Carpenters Apprentice and Trainee Program Fund (collectively "Trust Funds"). There are five defendants named in the second amended complaint. The cross motions for summary judgment, though, concern only four defendants: Sunshine Carpet Service, Inc. ("Sunshine"), TCB Carpet Service, Inc. ("TCB"), Dale Davis ("Dale"), and Diane Davis ("Diane") (collectively "Defendants").

 The two corporate defendants, Sunshine and TCB, were subcontractors engaged in the business of carpet installation. Dale incorporated TCB under the laws of Illinois in February 1990, and he was its sole officer and shareholder. Dale's home in Algonquin, Illinois, served as TCB's corporate office. The Trust Funds contend that TCB was formed due to the failure of Dales's former company, Dale Davis Installations, Inc ("DDI"). TCB was incorporated at the time Dale was dissolving DDI. Dale explained in his deposition that the Carpenter's Union audited DDI, and discovered a $ 50,000 discrepancy. Since Dale did not have the capital to satisfy the discrepancy, he later filed for bankruptcy in August 1990.

 Sunshine entered into the Carpenter's Collective Bargaining Agreement ("Agreement") with the Trust Funds in October 1990, executed by Dan as the president of Sunshine. The Agreement required the participant-employers to provide monthly contributions and reports to the Trust Funds based upon the hours employees and sub-contractors worked. In August 1993, the Trust Funds conducted an audit for the period of October 1990 through July 1993. Based on this audit, the Trust Funds assert that Sunshine owed $ 265,980.07, exclusive of costs.

 The Trust Funds central assertion is that Sunshine failed to make agreed upon contributions, and that Dale, Diane, and TCB, as the alter ego of Sunshine, must each be held liable for that deficiency. *fn3" Defendants contend that Sunshine and TCB each had its own identity and purpose; the one to perform union work, the other to perform non-union work. Furthermore, Defendants add that, in any event, the Trust Funds should not be allowed to pierce the corporate veil so as to hold Dale and Diane personally liable for Sunshine's deficiencies.

 DISCUSSION

 Rule 56(c) of the Federal Rules of Civil Procedure provides that a summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Transportation Communications Int'l Union v. CSX Transp., Inc., 30 F.3d 903, 904 (7th Cir. 1994). Summary judgment is not a discretionary remedy and must be granted when it is warranted. Jones v. Johnson, 26 F.3d 727, 728 (7th Cir. 1994) (per curiam). Even though all reasonable inferences are drawn in favor of the party opposing the motion, Associated Milk Producers, Inc. v. Meadow Gold Dairies, 27 F.3d 268, 270 (7th Cir. 1994), presenting only a scintilla of evidence will not suffice to oppose a motion for summary judgment, Walker v. Shansky, 28 F.3d 666, 671 (7th Cir. 1994).

 A. Alter Ego Doctrine

 The first issue concerns the corporate alter ego doctrine. The Trust Funds contend that Dale's TCB corporation is merely the alter ego of the signatory corporation, Sunshine. They argue that the manner in which Dale controlled the two corporations was so similar that the two corporations were indistinguishable. If the court so finds, the Trust Funds could recover against both corporations for any deficiency which Sunshine incurred under the Agreement. Central States Pension Fund v. Sloan, 902 F.2d 593, 596 (7th Cir. 1990); Penntech Papers, Inc. v. N.L.R.B., 706 F.2d 18, 24 (1st Cir. 1983) (holding that a non-signatory employer will be bound as a signatory where the court finds an alter ego relationship).

 The court notes that the purpose underlying the alter ego doctrine in the ERISA context is to prevent a corporate business from limiting its pension fund responsibilities by fractionalizing its business operations. Central States Pension Fund v. Ditello, 974 F.2d 887, 890 (7th Cir. 1992); Lumpkin v. Envirodyne Indus. Inc., 933 F.2d 449, 459 (7th Cir. 1991). "The alter ego doctrine focuses on '. . . an attempt to avoid the obligations of a collective bargaining agreement, such as through a sham transfer of assets.'" International Union of Operating Eng'r v. Centor Contractors, Inc., 831 F.2d 1309, 1312 (7th Cir. 1987) (quoting Penntech, 706 F.2d at 24). As such, if one corporation incurs withdrawal liability, then all other businesses within the control group of the first may be held equally liable. See 29 U.S.C. § 1201(b)(1). There is a federal interest in ignoring the corporate form to impose liability in cases concerning pension benefits governed by ERISA. Lumpkin, 933 F.2d at 460; see Alman v. Danin, 801 F.2d 1, 3 (1st Cir. 1986) ("ERISA . . . cannot be said to attach great weight to corporate form"); but see Central States Pension Fund v. Johnson, 991 F.2d 387, 390 (holding that "Congress did not . . . generally authorize pension ...


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