The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter is before the Court on Defendant Coit, Inc.'s Motion for Summary Judgment (d/e 24) and Motion to Strike (d/e 27). In November 2005, Plaintiffs filed a two-count Complaint (d/e 1) against Defendant Coit, Inc., d/b/a Coit Excavating a/k/a Central Illinois Hardwood, alleging that Defendant violated the Employee Retirement Income Security Act of 1974 (ERISA), by failing to make certain fringe benefit contributions for covered employees. See 29 U.S.C. § 1145. Specifically, Plaintiffs sought audit liability due, together with liquidated damages, costs, and attorney's fees, for the period from January 1, 2002, to March 31, 2003, (Count 1) and delinquent contributions for the period from June 2003, through August 2003, together with associated costs and attorney's fees (Count 2). Defendant asserts that it is entitled to summary judgment on each count. Defendant also moves to strike certain materials submitted by Plaintiffs in support of their Response to Defendant's Motion for Summary Judgment (d/e 25). For the reasons set forth below, the Motion for Summary Judgment is denied, and the Motion to Strike is denied as moot.
Beginning in 1997, Chad Coit operated a sole proprietorship known as Central Illinois Hardwood. The parties dispute the type of work performed by Central Illinois Hardwood and the point at which, if ever, Central Illinois Hardwood ceased to operate. According to Defendant, Central Illinois Hardwood ceased to operate in 1999. Motion for Summary Judgment, Ex. 1, Declaration of Chad Coit (Coit Dec.), ¶ 1. According to Plaintiffs, Central Illinois Hardwood did not terminate as a business in 1999, but rather continued to exist and report income to the Internal Revenue Service until at least 2004. Plaintiffs' Response to Defendant's Motion for Summary Judgment, p.6, Additional Material Fact No. 1.
According to Defendant, Central Illinois Hardwood was a tree removal business. Coit Dec., ¶¶ 2-3. According to Plaintiffs, Central Illinois Hardwood performed work other than tree removal, including concrete work and excavating. See Plaintiffs' Response to Defendant's Motion for Summary Judgment, Ex. P3, ¶ 12.
It is undisputed that Coit, Inc. is an Illinois corporation, that was incorporated by Chad Coit on August 5, 2002. Motion for Summary Judgment, Ex. 3, Articles of Incorporation, filed August 5, 2002. It is also undisputed that Coit, Inc. sometimes does business under the name Coit Excavating. According to Chad Coit, "[t]he business of Coit, Inc. is excavation and concrete work and has never included tree removal service . . . ." Coit Dec., ¶ 9. It is Defendant's position that Central Illinois Hardwood and Coit, Inc. d/b/a Coit Excavating are two separate businesses that engaged in different types of work. Plaintiffs assert that Coit, Inc. d/b/a Coit Excavating is the alter ego or successor of Central Illinois Hardwood.
On October 28, 1997, Chad Coit, as owner of Central Illinois Hardwood, entered into a Participation Agreement with the Central Laborers' Funds. Complaint, Ex. A, p. 2; Motion for Summary Judgment, Ex. 2. This was a general Participation Agreement. Id. On June 11, 2003, Chad Coit, as owner of Coit, Inc., entered into a Participation Agreement with the Central Laborers' Funds. Complaint, Ex. A, p. 1; Motion for Summary Judgment, Ex. 4. The June 11, 2003, Participation Agreement expressly states "Project Only Agreement," "For Duration of Job," and "Duration of Project only on Lumbertown Rd. Normal." Id. The parties agree that the June 11, 2003, Participation Agreement related to work performed by laborer Dan Whalen on a dog kennel job on Lumbertown Road in Normal, Illinois.
Plaintiffs' Complaint alleges that, based on the October 28, 1997, and June 11, 2003, Participation Agreements, Defendant was required to make contributions to Plaintiffs in accordance with Agreements and Declarations of Trust, the relevant portions of which are attached to the Complaint as exhibits. Complaint, ¶¶ 3, 5 & Ex. A, B, C, D, & E. Defendant asserts that it is entitled to summary judgment because there is no evidence that Coit, Inc. was a party to any agreement other than the project specific June 11, 2003, Participation Agreement, and the requisite contributions were tendered under that Agreement. According to Defendant, Coit, Inc. cannot be bound by the October 28, 1997, Participation Agreement because it is clear from the evidence that Coit, Inc. and Central Illinois Hardwood are separate entities, that performed different services on different types of jobs.
Summary judgment is appropriate 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." Fed. R. Civ. P. 56 (c). A party moving for summary judgment must present evidence that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The Court must consider the evidence presented in the light most favorable to the non-moving party. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once the moving party has produced evidence showing that it is entitled to summary judgment, the non-moving party must present evidence to show that issues of fact remain. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A genuine issue of material fact exists only if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 248.
As set forth above, Plaintiffs' Complaint bases Defendant's payment obligations on the October 28, 1997, and June 11, 2003, Participation Agreements, copies of which are attached to and incorporated into the Complaint. Defendant asserts in its Motion for Summary Judgment that the only Participation Agreement that is applicable to Coit, Inc. is the one dated June 11, 2003. Plaintiffs, in their Response to Defendant's Motion for Summary Judgment, rely in part on a Residential Work Agreement, purportedly signed on June 19, 2000, between Chad Coit, as owner of Coit Excavating, and Cement Masons Local Union 18, Area 152. Plaintiffs' Response to Defendant's Motion for Summary Judgment, p. 9-10. In support of this argument, Plaintiffs' Response includes as exhibits Affidavits from Cement Masons Business Manager John Mozingo and Central Laborers' Pension Fund Employer Contributions Department Director Dan Koeppel, as well as an undated signature page bearing Chad Coit's signature as owner of Coit Excavating. Id., Ex. P4, P5, & P6.
Defendant moves to strike the signature page (Ex. P4) and several paragraphs from the Mozingo and Koeppel Affidavits, arguing that they are irrelevant and unsupported by the record or admissible testimony.
Defendant also notes that Plaintiffs failed to provide the terms of the June 19, 2000, Residential Work Agreement, making it impossible for the Court to analyze the existence of any obligations that may arise from it.
Thereafter, in their response to the Motion to Strike, Plaintiffs did provide the Court with a copy of the June 19, 2000, residential work agreement, negating Defendant's second argument. Plaintiffs' Memorandum in Support of its Response to Defendant's Motion to Strike (d/e 30), Ex. A. Plaintiffs further submit that Defendant acted with unclean hands in filing its request to strike based on Defendant's alleged failure to produce the June 19, 2000, Residential Work Agreement in response to Plaintiffs' Requests to Produce. Plaintiffs do not supply the Court with copies of the relevant discovery documents; however, they assert that Plaintiffs' Request to Produce No. 7, served March 5, 2007, sought production of "all documents that have any relation whatsoever to the claims that are the subject of this lawsuit." Plaintiffs' Response to Defendant's Motion for Summary Judgment, p. 9. According to Plaintiffs, Defendant violated Federal Rule of Civil Procedure 26(g)(3) in that "Defendant did not produce any additional Agreements beyond those attached to Plaintiff's [sic] Complaint." Id. Based on the information before the Court, it is not clear that the June 19, 2000, Residential Work Agreement falls within the scope of Plaintiffs' Request to Produce No. 7 such that Defendant would have been required to produce it.*fn1 Plaintiffs' Request to Produce No. 7 sought documents having any relation to the claims that are the subject of the lawsuit. Plaintiffs' Complaint expressly bases ...