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Chicago Painters and Decorators Pension v. Darwan

March 31, 2006


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


On March 9, 2005, this court entered a final judgment of $117,442.19 in favor of Plaintiffs Trustees of the Chicago Painters and Decorators Pension, Health and Welfare and Deferred Savings Plan Trust Funds. Defendant Salma Darwan d/b/a Royal International & Decorating, Inc. moved for reconsideration of several aspects of the court's judgment, this court requested briefing on two discrete claims only: (1) whether final judgment was proper in light of Defendant's counterclaim; and (2) whether the calculation of interest on unpaid contributions was appropriate. For the reasons explained here, the court concludes that its final judgment need not be disturbed, except for a recalculation of the appropriate interest award.


This case arose out of a series of collective bargaining agreements ("CBAs") between Defendant and the Painter's District Council No. 14 ("PDC 14"), the Chicago affiliate of the International Brotherhood of Painters and Allied Trades ("the Union"), and the Agreement and Declaration of Trust establishing the Plaintiff Funds (the "Declaration") (together with the CBAs, the "Agreements"). Plaintiffs claimed that Defendant breached the Agreements during the period October 1, 1999 through March 31, 2000 by failing to report and contribute required pension amounts for some of the hours worked by Union employees on drywall taping and finishing work. Defendant filed a counterclaim in which it requested a judgment declaring that it "[did] not owe contributions based on [Plaintiff's] comparison of quantities of drywall purchased by Royal with contributions paid by Royal." Countercl. at 3. After an eight-day trial in the spring of 2002, the court concluded that Defendant's records were incomplete and unreliable, and that Plaintiffs had established a satisfactory alternative method for determining the number of hours worked by Defendant's employees. Specifically, in lieu of Defendant's unreliable records, Plaintiff conducted a "material audit," extrapolating the number of hours worked from the amount of raw material Defendant used throughout the period. Significantly, for the purposes of this opinion, Plaintiff conducted the material audit only for a subset of the period for which it was claiming unpaid contributions: October 1, 1999 through March 31, 2000 (the "Material Audit Period").

After concluding that the material audit was a reliable alternative for calculating the number of hours worked by Defendant's employees, the court asked the parties to submit briefs addressing, among other issues, damages (both within and outside the Material Audit Period) and interest on unpaid contributions. On November 19, 2004, the court awarded Plaintiff $117,442.19, broken out as follows: $30,508.13 in unpaid contributions for the Material Audit Period; $68,266.16 in liquidated damages; $17,955.82 in accumulated liquidated damages for the period December 1, 1998 through March 31, 2000; and $712.08 in owed payroll and cash disbursements. With respect to Plaintiff's claim for damages outside the Material Audit Period, the court ordered Defendant to provide records for an equitable accounting using the same material-audit procedure used for the Material Audit Period. This second audit was intended to address any unpaid contributions for the period December 1, 1998 through September 30, 1999 (the "Supplemental Audit Period.").*fn2

The accounting firm retained by Plaintiffs to perform the audit, Levinson Simon & Sprung P.C. ("Levinson"), issued a preliminary audit report on December 14, 2004. See December 2004 Audit Report, Ex. B to Def.'s Reply in Support of its Amended Motion to Reconsider (hereinafter "Def.'s Reply"). This report showed unpaid contributions of $2,354.69 for the Supplemental Audit Period.*fn3 On or about December 16, 2004, Plaintiff served two of Defendant's suppliers, Allied Drywall Materials and Management Corp. ("Allied") and L&W Supply Corp. ("L&W"), with document subpoenas requesting, among other documents, "[a]ll invoices issued by [supplier] to Royal International Drywall & Decorating, Inc." See December 2004 Subpoenas, Ex. C to Def.'s Reply in Support of its Amended Motion to Reconsider (hereinafter "Def.'s Reply"). Levinson issued a second audit report on or about January 22, 2005, showing unpaid contributions of $34,190.96 for the Supplemental Audit Period. It is not clear whether this report is based on materials provided in response to Plaintiff's subpoenas. Defendant claims that Plaintiff provided it with copies of the documents received from Allied and L&W sometime in February 2005. See Pl.'s Reconsideration Mem. at 3.

Defendant refers to a meeting between the parties and a Levinson auditor, Marie Smith, at some unspecified time after Levinson submitted the January 22, 2005 report. See Def.'s Reply at 4. At that meeting, Defendant claims that it "pointed out numerous errors in the audit" and asserted that it had, in fact, overpaid contributions to the Funds. Id. Defendant claims that this led Plaintiff, at a March 9, 2005 status hearing, to move the court to dismiss its claim for damages for the Supplemental Audit Period. The court granted Plaintiff's motion, over Defendant's objection that its counterclaim was unresolved, and entered judgment in Plaintiff's favor.

This decision precipitated Defendant's motion to reconsider. Defendant's motion attaches a declaration from Hysam Darwan, Royal's president, which purports to show that Defendant is owed money for overpaid contributions. See Darwan Decl., Ex. 1 to Def.'s Amended Motion to Reconsider (hereinafter "Reconsideration Motion"). Defendant's motion also attaches declarations from Allied and L&W executives that purport to show Defendant's monthly drywall purchases from December 1998 through March 2000, upon which Mr. Darwan based his calculations.*fn4 See White Decl. ¶ 3; Usedom Decl. ¶ 3, Exs. A and B to Darwan Decl. Mr. Darwan claims that these figures demonstrate that Levinson's material audit overstated the amount of drywall that Defendant utilized. Darwan Dec. ¶ 12. Although Plaintiffs do not directly dispute Mr. Darwan's figures, they have produced a third audit report, dated April 7, 2005, which shows Defendant still owing $4,610,58.


Citing Rule 41(a)(2), Defendant insists that this court erred in granting final judgment in Plaintiff's favor notwithstanding Defendant's counterclaim. See FED. R. CIV. P. 41(a)(2) ("If a counterclaim has been pleaded by a defendant prior to service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court."). Defendant also argues that information obtained from Allied and L&W constitutes "new evidence" that justifies revisiting the court's damages calculation for the Material Audit Period, or, alternatively, justifies off- setting those damages by $23,796.61-the amount Defendant claims it overpaid during the Supplemental Audit Period. Finally, Defendant claims that the court incorrectly calculated interest on the unpaid contribution that the court awarded Plaintiff.

A motion to reconsider served within 10 days of the court's decision is treated as a Rule 59(e) motion. See United States v. Deutsch, 981 F.2d 299, 301 (7th Cir. 1986). Applying Rule 59(e), the court will alter its decision "if the movant presents newly discovered evidence that was not available at the time of trial or if the movant points to evidence in the record that clearly establishes a manifest error of law or fact." See County of McHenry v. Ins. Co. of the West, 438 F.3d 813, 819 (7th Cir. 2006) (internal quotations omitted). A Rule 59(e) motion is not a vehicle for advancing "arguments or theories that could and should have been made" prior to judgment, id. (internal quotations omitted), nor is it "an appropriate forum for rehashing previously rejected arguments." Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996).


Plaintiff's Complaint requested unpaid contributions for the period October 1, 1998 through March 31, 2000. Compl. ¶ 8. As previously discussed, at trial the parties presented evidence concerning only the Material Audit Period, a five-month subset of the full period for which Plaintiff had requested relief in its Complaint. Defendant's Counterclaim against Plaintiff on its face simply challenges Plaintiff's theory of recovery: It requests a declaration that Defendant "[did] not owe contributions based on [Plaintiff's] comparison of quantities of drywall purchased by Royal with contributions paid by Royal." Countercl. at 3. Defendant also asks the court to declare that: (1) "[Plaintiff] did not have the right to review records relating to quantities of drywall purchased to determine if Royal has complied with its obligations;" and (2) "[Plaintiff's] request for and/or review of Royal's drywall purchases is not legitimate and/or is imprudent." Id.

Defendant argues that the court improperly dismissed, over Defendant's objection, Plaintiff's claim for unpaid compensation during the Supplemental Audit Period. The portion of Rule 42(a)(2) that Defendant relies on applies only in "extremely limited" circumstances, however, where the defendant's counterclaim "[cannot] remain pending for independent adjudication by the court." FED. R. CIV. P. 42(a)(2); Charles A. Wright & Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE § 2365 (2005). Defendant does not attempt to explain why its counterclaim could not be adjudicated independently. Even if Defendant's counterclaim had requested a declaration that Defendant overpaid contributions (as discussed below, it does not), that claim would not somehow depend on the court retaining jurisdiction over Plaintiff's supplemental claim for underpaid contributions. Cf. James W. Moore, MOORE'S FEDERAL PRACTICE, § 41.40[8][a] (3d ed. 1997) ("[A] plaintiff may not dismiss an action when the dismissal would destroy federal jurisdiction and prevent the court from adjudicating the defendant's counterclaim."). So, even if ...

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