The opinion of the court was delivered by: Richard Mills, District Judge.
Summary judgment for Defendants.
Thomas D. White is an 81 year old former employee of E & F
Distributing Company (E & F) and worked for E & F from 1949
through December 31, 1979. For the first three to five years he
worked for E & F, White drove a truck and earned a regular
salary. At some point between 1952 and 1955, he became a
commissioned liquor salesman. In that capacity, he received no
regular salary, was paid a straight 3 or 3.2% commission, and
paid all of his own expenses. This compensation arrangement
continued until White retired from E & F in 1979.
On September 28, 1968, E & F adopted a pension plan, the E &
F Distributing Company Employees' Pension Plan (the Plan). The
1968 version of the Plan provided:
Each present salaried employee of the Company and
each salaried employee hired after the effective
date of this agreement whose customary employment
is for more than twenty hours a week and five
months a year will be eligible to become a
Participant under this Plan as of the Anniversary
Date on which he first meets all of the following
(a) he must be actively at work.
(b) he must be at least age 25, but not more
than age 60 as of the First Anniversary Date, or
age 55 as of any subsequent Anniversary Date.
(c) He must have been continuously employed by
the company for 3 years.
(d) He must file with the Trustee within 20 days
after he receives the necessary form, written
application for participation in this Plan in
which application he must agree to abide by the
provisions of this plan and comply in good faith
with the requirements of the Insurer.
The 1968 version of the Plan computed pension payments based on
each participant's "annual compensation." The Plan defined
annual compensation as: "The amount paid as the fixed salary or
wage of a Participant immediately prior to the latest
Anniversary Date of the Plan, excluding commissions, bonuses,
overtime, premiums, and other non-recurring compensation."
Effective September 28, 1976, E & F replaced the 1968 version
of the Plan. The new Plan specifically excluded commissioned
salesmen from participation.
Despite language in the Plan documents which allows the Plan
to exclude commissioned salesmen from participation, several
commissioned salesmen have been allowed to participate.
Henry Manci, who took over White's job when he retired in
1980, has been listed as a participant since 1982.
Donald Ginder has been a participant since 1968. At that time
Mr. Ginder was a salaried employee. He has been carried as a
participant through an "administrative error," despite the fact
that he has been a commissioned salesman since sometime between
1973 and 1981.
James Egizii has been employed by E & F since 1975 and has
been a participant since 1977. E & F initially employed James
Egizii as a merchandiser and paid him a salary. At some point
during his tenure, James Egizii became a wine salesman and wine
sales manager. In that position he received both a salary and
David Hatfield has been employed by E & F since 1977 and has
been a participant since 1979. Like James Egizii, Mr. Hatfield
has been paid either a salary or a combination of salary and
commission. When E & F first hired Hatfield, he worked as a
special wine promoter and received a salary. At some point,
Hatfield also assumed sales duties, for which he earned a
Lou Wells, Walter Brown, Larry Gawthrop, Robert Stewart,
Ronald Adams, and Roger Ortman have been commissioned salesmen
for E & F since the early to mid 1980s and have all been
treated as participants in the Plan.
White requested pension benefits on April 22, 1993. This
lawsuit arises out of the Plan's refusal to pay a pension to
This case began on May 20, 1994 when White filed his
Complaint, in which he names three separate defendants in three
counts. Count I requests relief from the E & F Distributing
Company Employees' Pension Plan (hereinafter referred to as
simply the Plan); Count II requests relief from Springfield
Marine Bank, n/k/a Bank One, Springfield, as Trustee (Bank
One); and Count III requests relief from E & F Distributing
Company as Plan administrator and employer (E & F).
On July 25, 1994, the Defendants answered the complaint by
responding to the allegations of paragraphs 1-16 of each count.
Defendants Bank One and E & F, however, failed to respond to
several allegations in the Counts against them.
On November 3, 1994, United States Magistrate Judge Charles
H. Evans entered the Scheduling Order. The Scheduling Order
provided that no motions to amend the pleadings or to join
parties could be filed after the date of the order.
Additionally, the Scheduling Order set June 23, 1995 as the
final date for filing dispositive motions.
On March 31, 1995, Defendants sought leave to file
affirmative defenses. Magistrate Judge Evans denied that motion
on reconsideration on June 23, 1995. Then Bank One and E & F
filed a motion for leave to amend their faulty answers. The
Court denied that motion on October 2, 1995, at which time the
Court also denied Defendants' objection to Magistrate Judge
Evans' order striking their affirmative defenses.
Shortly after this Court denied Defendants leave to amend
their answers, Defendants' attorney sought to withdraw from
this case. Defendants' attorney felt that the proceedings
concerning Defendants' Answers had created a conflict between
counsel and clients. Eventually, the Court allowed that
motion and replacement counsel stepped in.*fn1
The Court held a final pretrial conference on February 20,
1996. The case was set on the Court's March 1996 trial
calendar. Due to the number of criminal and civil jury trials
set that month, finding time for the bench trial in this case
seemed unlikely. Plaintiff, not wanting to simply waste the
time waiting for trial, filed a motion for summary judgment on
Counts II and III. And here we are.
Plaintiff's motion precipitated cross-motions and responses.
Ordinarily the Court would not entertain such untimely motions
for summary judgment (the deadline for filing dispositive
motions was June 23, 1995).*fn2 This case, however, is set for
a bench trial. The motions for summary judgment propose to
resolve this case, either partially or wholly, without the need
for a trial. Therefore, this is one instance in which deviation
from the scheduling order ...