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Divane v. Sonak Electrical Contractors

August 24, 2006

WILLIAM DIVANE, JR., KENNETH J. BAUWENS, MICHAEL J. CADDIGAN, SAMUEL EVANS, MICHAEL FITZGERALD, THOMAS C. HALPERIN, DANIEL MEYER, KEVIN M. O'SHEA, RICHARD SIPPLE, AND MICHAEL L. WALSDORF, AS THE ELECTRICAL INSURANCE TRUSTEES, PLAINTIFFS,
v.
SONAK ELECTRICAL CONTRACTORS, INC. AND AKIN SONUGA, DEFENDANTS.



The opinion of the court was delivered by: Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiffs William Divane Jr. ("Divane"), Kenneth J. Bauwens, Michael Caddigan, Samuel Evans, Michael Fitzgerald, Thomas C. Halperin, Daniel Meyer, Kevin M. O'Shea, Richard Sipple and Michael L. Walsdorf (collectively, the "Trustees"), as the Electrical Insurance Trustees, filed a complaint against defendants Sonak Electrical Contractors ("Sonak Electrical") and Akin Sonuga ("Sonuga"). In their complaint, plaintiffs allege that Sonak Electrical breached collective bargaining agreements by failing to pay pension contributions and failing to maintain a fringe-benefit bond. Plaintiffs also allege that Sonuga is personally liable for a bounced check. Plaintiffs have moved for summary judgment on all of their claims. For the reasons set forth below, the Court grants in part and denies in part plaintiffs' motion for summary judgment.

I. Background

Before the Court discusses the undisputed facts, it reiterates the importance of complying with Local Rule 56.1. Local Rule 56.1 outlines the requirements for the introduction of facts parties would like considered in connection with a motion for summary judgment. As the Court notes on its website (and has mentioned in multiple opinions), the Court enforces Local Rule 56.1 strictly. See Thomas v. CitiMortgage, Inc., Case No. 03 C 6177, 2005 WL 1712266 at *1 n. 1 (N.D. Ill. Jul. 20, 2005); Perez v. City of Batavia, Case No. 98 C 8226, 2004 WL 2967153 at *10 (N.D. Ill. Nov. 23, 2004); see also Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir. 2004). Facts that are argued but do not conform with the rule are not considered by the Court. For example, facts included in a party's brief but not in its statement of facts are not considered by the Court because to do so would rob the other party of the opportunity to show that such facts are disputed.

As plaintiffs point out, the defendants failed to file a response to plaintiffs' statement of material facts. Plaintiffs, thus, argue that all of the facts in their statement of facts should be deemed admitted. Plaintiffs are correct that where one party supports a fact with admissible evidence and the other party fails to controvert the fact with citation to admissible evidence, the Court deems the fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir. 2004). This, however, does not absolve plaintiffs of their initial burden of putting forth admissible evidence to support their facts. Asserted "facts" not supported by deposition testimony, documents, affidavits or other evidence admissible for summary judgment purposes are not considered by the Court. Among the types of evidence admissible for summary judgment purposes are admissions. See Fed. R. Civ. P. 56(c) ("The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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.") (emphasis added); Woods v. City of Chi., 234 F.3d 979, 989 (7th Cir. 2000) ("An 'admission' includes 'anything which is in practical effect an admission' including statements made in a brief presented to the district court[.]") (internal citations omitted). Accordingly, the asserted facts (4, 5, 15, 16, 17, 18, 27, 28 and parts of 6 and 29) that plaintiffs supported with admissible evidence (including admissions) are deemed admitted.

The asserted facts plaintiffs failed to support with admissible evidence, on the other hand, are not deemed admitted merely because defendants failed to respond. In this particular case, plaintiffs sought to support some of their asserted facts with admissions in defendants' answer to plaintiffs' complaint. Specifically, plaintiffs sought to use as admissions against defendants those allegations that defendants failed to deny in their answer. The Federal Rules of Civil Procedure make clear that "[a]verments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading." See Fed. R. Civ. P. 8(d). Thus, any allegations in plaintiffs' complaint that defendants failed to deny are deemed admitted. See King Vision Pay Per View, Ltd. v. J.C. Dimitri's Restaurant, Inc., 180 F.R.D. 332, 334 (N.D. Ill. 1998) (deeming admitted complaint allegations that defendant failed to deny properly); see also State Farm Mutual Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278-280 (N.D. Ill. 2001) (outlining proper way to answer complaint under the Federal Rules of Civil Procedure). The Federal Rules, however, provide two ways to deny an allegation. The first is a simple denial. The second is to state that the party lacks "knowledge or information sufficient to form a belief as to the truth" of the allegation. Such an answer is deemed a denial. See Fed. R. Civ. P. 8(b) ("If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial."). Thus, defendants effectively denied paragraphs 8, 9, 10, 11-12, 13, 14, 19 and 20 and portions of paragraphs 6 and 7 of plaintiffs' complaint. The Court does not deem defendants to have admitted those allegations, and the plaintiffs cannot use those paragraphs to support facts asserted in their statement of facts.

The following facts are undisputed.

At some point (the exact timing is irrelevant), the Electrical Contractors Association of the City of Chicago (of which plaintiffs are the Trustees) and the International Brotherhood of Electrical Workers Local Union 134 entered a collective bargaining agreement ("the Principal Agreement"). The Principal Agreement provides, in relevant part:

Section 18.06 Effective June 2, 2003 through June 6, 2004, the Employer shall contribute an amount equal to 33.4324% of the Gross Productive Electrical Labor Payroll of Employees to cover the following fringe benefits: Health and Welfare, Local Pension, Apprenticeship and Training Contribution, the Labor Management Cooperation Committee of Chicago and the Electrical Industry Drug-Free Alliance. This percentage contribution made to the Electrical Insurance Trustees will be based upon the Journeyman scale for all classifications of labor excluding apprentices.

Section 18.07 The Employer shall contribute $2.15 per hour for each hour worked into the Annuity Plan.

Section 18.08 Effective June 2, 2003 through June 6, 2004, $1.45 per hour for each hour worked will be contributed into the Additional Security Benefit Plan (ASBP) for General Foremen, Foremen, Journeyman Wiremen and Apprentices. Apprentices will receive a percentage of the ASBP contribution in accord with the percentages in Article XVIII, Section 4 of this Agreement.

Section 18.09 Effective June 2, 2003, all Employers covered by this Agreement shall contribute $.06 per hour worked for each employee covered by this Labor Agreement to the Administrative Maintenance Fund. . . .

Section 18.14 "Gross Productive Electrical Labor Payroll" is defined to mean total wages paid for all hours worked by all classes of electrical labor for which a rate is established in the prevailing labor agreement. Gross payroll includes all wages paid including overtime premium pay computed at the rate established for each classification of electrical labor. No portion of wages shall be excluded from Gross Productive Electrical Labor Payroll. This definition has been the basis for payment to the National Electrical Benefit Fund ...


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