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ARCHITECTURAL IRON WORKERS v. UNITED CONTRACTORS

March 9, 1999

ARCHITECTURAL IRON WORKERS LOCAL NO. 63 WELFARE FUND, ET AL., PLAINTIFFS,
v.
UNITED CONTRACTORS, INC., AND UNITED SKYS, INC., DEFENDANTS.



The opinion of the court was delivered by: Guzman, United State Magistrate Judge.

MEMORANDUM OPINION AND ORDER

Pending are the parties cross motions for summary judgment pursuant to F.R.Civ.P. 56(c). Also pending is defendants' motion to strike certain of plaintiffs' summary judgment exhibits and a number of plaintiffs' 12(M) statements. For the reasons set forth below, defendants' motion to strike is granted in part and denied in part. Plaintiff's motion for summary judgment is denied and defendant Skys' motion for summary judgment is granted.

MOTION TO STRIKE

Before ruling on the merits of the parties' motions for summary judgment, the arguments raised in defendants' motion to strike must be addressed. In general, defendants' motion to strike claims that many of the exhibits offered by plaintiffs in support of their motion for summary judgment are unsupported by affidavit or testimony of record and/or otherwise fails to meet the evidentiary standards required on summary judgment. In other instances, defendants complain that though a document may have been used during a deposition, the testimony regarding the document is not sufficient to render it admissible on summary judgment. Defendants finally claim that many of the inferences which plaintiffs have set forth in their 12(M) statement either do not cite admissible evidence or are unfounded because of the breadth of the inferences drawn in comparison to the actual evidence of record.

Plaintiffs object to defendants' filing of this motion to strike arguing that this motion was unnecessary and improper. Plaintiffs argue that defendants could have easily set forth their evidentiary objections to plaintiffs' proffered evidence in their response to plaintiffs' 12(M) statement. We find that defendants' motion is a proper method for resolving the issues that defendants complain of. FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986). However, the motion to strike will be granted only if the complained of materials are essentially unsupported by the record, it is not the function of a motion to strike to resolve conflicting evidence in the record.

Defendants' first argument is that plaintiff's Exhibits/Tabs 2, 3, 10, 11, 13, 16, 23, 24, 25, 26, 27, 28, 29, 32, 33, 34 (pages 947), 35, 38, 45, 46, 49, 50 (D and F) are inadmissable because they are unsupported by affidavit or deposition testimony. These documents are as follows:

  Tab 2 Excerpts from the collective bargaining
      agreement with Local 63.
  Tab 3 Excerpts for the collective bargaining
      agreement with Local 393.
  Tab 10 A fringe benefit contribution report filed by
      Contractors for work performed in January, 1993.
  Tab 11 A time card for employee Vogelsang for week
      ending January 8, 1993.
  Tab 13 Various dispatch papers kept by the Union
      showing dates on which Contractors called the
      Local 63 hiring hall for employees.
  Tab 16 A table showing the officers and directors of
      United Skys from 1993-1997.
  Tab 27 A table showing the employees of United
      Contractors and United Skys and the sources of
      that information.
  Tab 18 Lists of United Skys' employees for year
      ending 1993.
  Tab 19 Lists of United Skys' employees for year
      ending 1994.
  Tab 20 Lists of United Skys' employees for year
      ending 1995.
  Tab 21 Lists of United Skys' employees for year
      ending 1996.
  Tab 23 Lists of United Contractors employees for year
      ending 1993.
  Tab 24 Lists of United Contractors employees for year
      ending 1994.
  Tab 25 Lists of United Contractors employees for year
      ending 1995.
  Tab 26 Lists of United Contractors employees for year
      ending 1996.
  Tab 28 Reports sent by United Contractors to Local 8
      of the Ironworkers for fringe benefit
      contributions.
  Tab 29 An invoice from Local 8 of the Ironworkers
      Fringe Benefit Funds to United Contractors for
      liquidated damages and interest.
  Tab 30 Two vehicle titles showing the owners as
      United Skys and United Contractors.
  Tab 32 A memorandum of action of shareholders and
      directors of United Skys and United Skys Board of
      Directors meeting minutes, December 1993 through
      December 1996.
  Tab 33 Two consent actions of directors of United
      Contractors, Inc. one date December 1993 and
      one dated November 1994.
  Tab 34 Pages 9 through 47 are various subcontracts
      between United Skys and general contractors for
      the installation and manufacture ofskylights.
  Tab 35 Purchase orders issued by United Skys to
      United Contractors for 1994.
  Tab 37 A page of the workers compensation insurance
      policy issue to United Skys and United
      Contractors.
  Tab 38 Copies of checks payable to United Contractors
      from United Skys for the period January 1993
      through May 1997.
  Tab 45 A letter from Jerry Johnson of United Skys to
      Jim Morton of Local 63.
  Tab 46 Yellow Pages listing for "skylights" in the
      far northern suburban area of Chicago.

Tab 49 Various time cards for employee Aaron Kozak.

  Tab 50 Four time card on which the name at the top in
      United Contractors with the word "Contractors"
      being crossed out and the words "Skys"
      handwritten above it.
  Tab D An October 24, 1995 letter form Charles
      McCartney as president of United Skys to Laura
      Finnegan on United Contractors' stationary.
  Tab F An invoice form United Skys to Laura Finnegan
      at the firm of Baum, Sigman, Auerbach, Pierson
      & Neuman, Ltd. for the cost to produce United
      Contractors' general ledger.

In addition to being self-authenticating, the documents produced by Defendants contain Defendants' own statements and are admissions, not hearsay. Under Federal Rule of Evidence 801(d)(2), admissions by party opponents are not hearsay. A statement or document is an admission under the Federal Rules of Evidence if it is offered against a party and is the party's own statement in either an individual or a representative capacity or a statement by a person authorized by the party to make a statement concerning the subject. Statements under the Federal Rules of Evidence included both oral and written assertions. F.R.Evid. 801(a). Therefore, defendants' motion to strike these documents is denied.

Defendants also attempt to strike Exhibits 2 and 3 because they were not produced by Plaintiffs during discovery but rather before discovery commenced. These exhibits contain excerpts from the parties collective bargaining agreements. The language in these excerpts have not changed with subsequent collective bargaining agreements and defendants do not argue that any of the terms are no longer binding. Because defendants have admitted they are parties to the collective bargaining agreements and because they do not dispute that any of these terms are no longer binding defendants' motion to strike Exhibits 2 and 3 is denied.

Defendants also complain about Exhibits 10 (Union Contribution Report) and 45 (Letter from Jerry L. Johnson of United Skys to James Morton of the Ironworkers Local 63). These are both documents prepared by defendants. Defendants do not deny that they sent the contribution report and letter to plaintiffs. There is no allegation that the documents are forgeries or that they have been tampered with. Indeed, if this were so, defendant's, as the authors of the documents, could easily controvert the documents and ask that they be stricken. Instead, defendants merely state that there is no independent authentication. Because the defendants could so easily call into question the accuracy or authenticity of these documents if they wished to do so, we find little danger to the truth finding process in allowing them to be used by plaintiffs. Thus, the motion to strike is denied.

The "requisition forms" at Exhibit 13 have been authenticated and are admissible. These are the "dispatch papers" written by the union when Contractors and/or Skys called for workers and were retrieved from the union's files. Defendants' counsel deposed Mr. Christos, Local 63's business agent, and at pages 16 through 27 of the deposition transcript, defendants' counsel went through each page that plaintiffs attached under Tab 13. Thus, these forms have been authenticated and are admissible.

Exhibits 16 and 27 are inadmissible for purposes of this motion because plaintiffs have failed to lay a proper foundation for its admission. Table 2, under Exhibit 27, is a summary and comparison of lists of employees of Contractors, list of employees of Skys and a summary of employees who were paid expenses and payroll checks from Contractors as based on Contractors' cash disbursement journals. Table 1, under Exhibit 16, is a comparison of the officers and directors of United Skys from 1993 through 1997. This evidence was apparently produced in the defendants' Annual Reports to the State of Illinois.

Federal Rule of Evidence 1006 provides that summaries are admissible evidence where they offer the only practicable means of making voluminous records available to the judge. However, defendants are correct in their argument that a proper foundation has not yet been established as to these tables. Therefore, this Court finds these Exhibits inadmissible under Federal Rule of Evidence 1006 for purposes of this motion only. Defendants' objection to the documents contained in Exhibit 46, the Donnelly Telephone Directory pages is overruled. These are self-authenticating records under the Federal Rules of Evidence 902(6). Thus, Exhibits 2, 3, 10, 11, 13, 18, 19, 20, 21, 23, 24, 25, 28, 29, 30, 32, 33, 34 (pages 4-7), 35, 37, 38, 45, 46, 49, 50 (D & F) are admissible and defendants' motion to strike paragraphs 25, 15, 16, 19-26, 28-31, 45, 49, 53, 57, 60, 62, 63, 66-67, 69 (second sentences), 70-71, 74, 76, 82-85, 90, 92 (third sentence to end), 93 (first two sentences), 96, 99, 101, 108-110, and the third sentences of 112-115 are denied.

Defendants finally argue that paragraphs 12, 15-16, 33 (second sentence), 33, 46-47, 50-51, 54-55, 58-59, 61 (second sentence), 64 (last sentence), 65, 68-69 (second that third sentences), 70 (first sentence), 75, 76 (first sentence), 78(last sentence), 80, 86, 88, 91 (first sentence), 95, 101, 107, 112 (first and fourth sentences), 113 (fourth sentence), 114 (first and fourth sentences) and 115 (first and fourth sentences) of plaintiffs 12(M) statement should be stricken.

With respect to paragraph 12 defendants' motion to strike is denied. The date of Contractors and Skys incorporation is clearly July 12, 1988 and October 9, 1986 respectively but it is undisputed that Mr. McCartney make the relevant statement under oath. With respect to paragraph 15 defendants motion to strike is denied. Although the cited deposition testimony of Jean Dawson does not completely support this assertion of fact, Exhibit 10 — the contribution report does. With respect to the second sentence of paragraph 16 the motion to strike is denied because Exhibit 13 supports this assertion of fact. Paragraph 33 (second sentence) of plaintiff's 12(M) statement is stricken because it misstates what Paul Matik testified to during his deposition. Paragraphs 41 and 61 (second sentences) will not be stricken because they are supported by the deposition testimony of Heinrikson Paragraph 42 is stricken because this statement is not supported by Heinrikson's deposition testimony. Paragraphs 46, 47, 50, 51, 54, 55, 58, and 59 are all admissible because these facts are reflected on the face of the defendants' own documents.

Paragraph 64 (last sentence) is stricken because it mischaracterizes the testimony of McCartney. Paragraph 65 is admissible because McCartney's testimony supports this assertion of fact. Paragraphs 68-69 (second and third sentences), and 70 (first sentence), 75, 76 (first sentence),78 (last sentence) and 107 are all stricken because these statements of fact mischaracterize what McCartney testified to in his deposition.

Paragraphs 80 and 91 (first sentence) are admissible because they are supported by the record while paragraphs 86 and 88 are stricken because they call for a conclusion with respect to disputed facts. Paragraphs 95, 101, 112 (first sentence) are admitted because they are supported by the record. Paragraphs 112 (fourth sentence), 113 (fourth sentence), 114 (first sentence) and 115 (first sentence) are admitted pursuant to the stipulation of the parties with the phrase "for services rendered" added. Paragraph 115 (fourth sentence) is admitted because this assertion is supported by the face of the cash disbursement journal. Therefore, for the reasons listed above defendants motion to strike is denied in part and granted in part.

BACKGROUND FACTS

The background facts are taken from taken from the parties 12(M) and (N) statements pursuant to Local Rule 12. Plaintiffs Architectural Iron Workers Local No. 63 Welfare Fund, Iron Workers' Mid-America Pension Plan, Iron Workers' Tri-State Welfare Plan, Architectural Iron Workers Local No. 63 Defined Contribution Fund, Architectural Metal Trainee School Local No. 63, Iron Workers Local 63 Savings Plan, Iron Industry Promotion Fund, Architectural and Ornamental Iron Workers Local No. 63 AFL — CIO, initiated this suit in the United States District Court for the Northern District of Illinois. The plaintiffs allege in their complaint that defendant, United Skys, Inc. (Skys) is the alter ego of defendant, United Contractors, Inc. (Contractors), a wholly owned subsidiary of Skys, and thus responsible for contributions to the funds.

Contractors is an Illinois corporation and is the signatory to the collective bargaining agreement between Contractors and the plaintiffs. Skys is not a signatory to the collective bargaining agreements. The agreements between Contractors and Locals 63 and 393 provides that the employer shall pay contributions to the Iron Workers Tri-State Welfare Plan and the Mid-America Pension Plan for all employees who perform work covered under that agreement. (Plaintiff's 12(M), ΒΆ 5). ...


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