The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on the parties'
cross-motions for summary judgment. For the reasons set forth
below, Plaintiff's motion is granted and Defendant's motion is
Plaintiff Thomas Moriarty ("Moriarty") serves as trustee for
the Pension (the "Pension Fund"), Health and Welfare (the "Health
and Welfare Fund"), and Legal and Educational Assistance Funds
(the "Legal Fund") (referred to collectively as the "Funds") of the Teamsters Local Union No. 727 (the "Union").
Defendant Hursen Holdings Corporation ("Hursen") owns and
operates the Hursen Funeral Home. Hursen is an employer member of
the Funeral Directors Services Association of Greater Chicago
("FDSA"), a multi-employer organization which collectively
bargains on behalf of its members with the Union. Throughout the
relevant time period in this action, two collective bargaining
agreements existed between the Union and the FDSA, one covering
Funeral Directors and Embalmers and another covering Auto Livery
Chauffeurs.*fn1 These collective bargaining agreements,
along with the Funds' trust agreements, obligate the FDSA and
other employer members to contribute to the Funds on a monthly
basis for all bargaining unit work. Bargaining unit work under
the Livery Chauffeurs Agreement consists of auto livery chauffeur
services, including driving funeral vehicles and the
transportation of deceased individuals. When such bargaining unit
work is performed, the Funds require employers to identify the
employees for whom contributions are owed, assess the total
amount of time worked, and remit the corresponding contributions.
Under the collective bargaining agreements, FDSA
member-employers also agree to be bound by the trust agreements
creating the Funds. Under the Funds' trust agreements, trustees
reserve the right to examine and audit the books and records of each employer. Thus, if an audit identifies delinquent
contributions, the trust agreements authorize the trustees to
recover such amounts.
On February 27, 2003, Bansley & Kiener LLP, an auditor retained
by Moriarty, completed a payroll audit of Hursen to determine
Hursen's compliance with contractual and statutory contribution
obligations. The audit revealed Hursen's allegedly delinquent
contributions to the Funds for work performed by employees of
Leyden Livery ("Leyden") during the time period of August 1, 1996
through June 30, 2002 (the "audit period"). Specifically, the
audit noted a $3,030.40 delinquency to the Health and Welfare
Fund, a $2,360.30 delinquency to the Pension Fund, and a $42.60
delinquency to the Legal and Educational Assistance Fund.
Although not a FDSA employer, Leyden employed livery drivers
bound by the collective bargaining agreement between the FDSA and
the Union. During the audit period, Hursen retained Leyden to
perform livery and transportation of deceased individuals for the
funeral home. Hursen, although admitting its failure to make
contributions for work performed by Leyden employees, asserts
that it was not required to make any such contributions.
Following unsuccessful attempts to collect the allegedly
delinquent contributions, Moriarty filed an action against Hursen
claiming violations under Section 502(a)(3) of the Employee
Retirement Income Security Act ("ERISA") and Section 301(a) of the Labor Management Relations Act ("LMRA").
Both parties now move for summary judgment.
The standard for summary judgment is well-established. A motion
for summary judgment can only be granted when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with 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.
The court's function is not to judge the credibility of the
evidence, but rather to determine if "there is a genuine issue
for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). The party moving for summary judgment has the burden of
establishing that there is no genuine issue as to any material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). In
determining whether a genuine issue of material fact exists, the
court must view all facts and draw all reasonable inferences in
the light most favorable to the nonmoving party. Anderson,
477 U.S. at 255. Summary judgment is appropriate only when the court
determines that no reasonable jury could find for the nonmoving
party. McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 479
(7th Cir. 1996).
When parties file cross-motions for summary judgment, each
motion must be assessed independently, in light of the burden of
proof that each party would bear on an issue at trial. Santaella v. Metropolitan Life Ins. Co.,
123 F.3d 456, 461 (7th Cir. 1997). The filing of cross-motions for
summary judgment does not operate as a waiver of trial; rather,
each motion evidences only that the movant "thinks he is entitled
to judgment without trial, but wants a trial if the judge
disagrees." Miller v. LeSea Broadcasting, 87 F.3d 224, 230 (7th
Cir. 1996). Finally, summary judgment is appropriate where a
dispute concerns an interpretation of a written contract. ICEBU
v. Hyster-Yale Materials Handling, 83 F.3d 930, 923-33 (7th Cir.
1996). Where an agreement's language is unambiguous, the court
may determine meaning as a matter of law. Illinois Conference of
Teamsters and Employers Welfare Fund v. Mrowicki, 44 F.3d 451,
478 (7th Cir. 1994). With these considerations in mind, we turn
to the parties' motions.
The present case stands in an unusual posture. In all court
proceedings, William Pierson ("Pierson"), a nonattorney, has
appeared on behalf of Hursen. According to representations
Pierson has made to this court, he is one of two shareholders of
Hursen, a closely held corporation. To date, no attorney has
filed an appearance on behalf of Hursen. Although certain limited
circumstances allow for a nonattorney to represent a corporation,
the general rule is that a corporation cannot appear without an
attorney. See Strong Delivery Ministry Ass'n v. Board of Appeals of Cook
County, 543 F.2d 32 (7th Cir. 1976).
During a status hearing held on June 9, 2005, we admonished
Pierson that Hursen had until June 16 to either obtain counsel,
or supply a notarized affidavit in which the individual owners of
Hursen acquiesced to Pierson representing the corporation before
the court. Neither event has occurred. Thus, Hursen has not
responded to Moriarty's first amended complaint and is in
default. Accordingly, Moriarty is entitled to judgment in its
favor. In addition, as explained below, the merits entitle
Moriarty to judgment as a matter of law.
When parties agree to contribute to pension plans, ERISA
Section 515 requires that they do so consistent with the law and
to the extent promised. Central States Pension Fund v. Hartlage
Truck Service, 991 F.2d 1357, 1360 (7th Cir. 1993). The first
inquiry is to determine whether Hursen agreed to make
contributions under the collective bargaining agreements.
Initially, Hursen admits that it was a FDSA member during the
audit period and that it was bound by the collective bargaining
agreements between the FDSA and the Union. Hursen further
indicated assent to the collective bargaining agreements and
trust agreements when it submitted signed contribution ...