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April 17, 1996


The opinion of the court was delivered by: Richard Mills, District Judge.


Pension Plan.

Was Plaintiff covered?


Summary judgment for Defendants.


A. Facts

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 commissions.

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 commission.

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 White.

B. Procedural Background

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 ...

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