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Railroad Maintenance and Industrial Health and Welfare Fund v. George J. Beemsterboer

May 28, 2008

RAILROAD MAINTENANCE AND INDUSTRIAL HEALTH AND WELFARE FUND, PLAINTIFF,
v.
GEORGE J. BEEMSTERBOER, INC., AN INDIANA CORPORATION, D/B/A DUTCH BARN LANDSCAPE CONTRACTORS, DEFENDANT.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This matter comes before the Court on cross motions for summary judgment (d/e 25 & 26), and the parties' Motions to Strike various filings (d/e 30, 32, 37). For the reasons set forth below, the Motions are DENIED.

STATEMENT OF FACTS

Plaintiff Railroad Maintenance and Industrial Health and Welfare Fund (Fund) is an ERISA-qualified multi-employer welfare benefit plan. 29 U.S.C. § 1001 et seq. On March 24, 1993, Defendant George J. Beemsterboer, Inc., d/b/a Dutch Barn Landscape Contractors (Dutch Barn) signed a Memorandum of Agreement (Agreement) which obligated it to abide by the collective bargaining Master Agreement between Local 150, International Union of Operating Engineers and various associations of landscaping contractors. Amended Complaint (d/e 15), Exhibit A, Agreement. The Agreement obligated Dutch Barn to make contributions to the Fund on behalf of covered employees (Covered Employees) engaged in covered work (Covered Work).

Covered Employees were those employees who were employed as "Landscape Equipment Operators" as defined in the Master Agreement. Agreement, ¶ 3. The Master Agreement defined Landscape Equipment Operators as employees who operated certain equipment including back hoes, tractors, wood chippers, fork lift trucks, and angle dozers. Plaintiff's Motion for Summary Judgment (d/e 25) (Plaintiff's Motion), Exhibit 1, Master Agreement, Art. 6 § 1. In addition, "Landscape Equipment Operators may also be assigned to perform the responsibilities of a lead-man or working foreman." Id.

The Agreement described the Covered Work as: only for such work wherein the Employer is engaged in commercial and/or industrial and/or municipal landscaping. The Employer shall have no obligations of any sort under this Agreement when engaged in the performance of residential landscaping (single family homes), but does have obligations in landscaping large groups of homes in a subdivision.

Agreement, ¶ 3. The Master Agreement has been renewed over time and remains in effect. Dutch Barn has remained a signatory to the Agreement from 1993 to the present.

On June 27, 2007, the Fund's auditors conducted an audit of Dutch Barn's records. The Fund asked for records from January 2000 through December 2005 (the Audit Period) for three Covered Employees, Franco Asuncion, Angel Dominguez, and Saul Luna. The Fund's auditors determined that Dutch Barn did not maintain any records of when these employees were engaging in Covered Work. The Fund's auditors then counted all of these employees' hours during the Audit Period as Covered Work. The auditors found that Dutch Barn owed $59,816.00 in unpaid contributions during the Audit Period. The Fund brought this action to recover those unpaid contributions. In addition, the Fund seeks liquidated damages, audit costs, interest, and attorney fees.

In response, Dutch Barn has submitted Affidavits from Alan Beemsterboer, Franco Asuncion, Angel Dominguez, and Saul Luna. Beemsterboer stated that he was the manager of Dutch Barn. He stated that during the Audit Period, ninety percent of Dutch Barn's work was on single family homes. He stated that Asuncion worked only on residential landscaping or landscape maintenance projects for single family homeowners. He stated that Dominguez worked as a laborer for Dutch Barn and only worked on residential projects. He stated that Luna performed covered work as a Landscaping Equipment Operator on commercial properties. Defendant's Motion for Summary Judgment (d/e 26) (Defendant's Motion), attached Affidavit of Alan Beemsterboer, ¶¶ 5-11.

Luna stated in his Affidavit that he was Dutch Barn's only Landscaping Equipment Operator. Defendant's Motion, attached Affidavit of Saul Luna, ¶ 4. Luna also stated that he worked on non-residential projects from August 2000 through December 2005. Affidavit of Saul Luna, ¶ 5. The Audit shows that Dutch Barn paid contributions for Saul Luna's work from August 2000 through December 2005. Plaintiff's Motion, Exhibit 8, Audit Report Contribution Records. The Fund only seeks payment of unpaid contributions for Luna's work performed from January 2000 to August 2000.

Asuncion stated in his Affidavit that he worked as a laborer and foreman for Dutch Barn. He stated that his duties included labor supervision. He also stated that the vast majority of his work was on noncommercial, residential properties. Defendant's Motion, attached Affidavit of Franco Asuncion, ¶¶ 2-4.

Dominguez told three conflicting stories about his work at Dutch Barn. In the Affidavit submitted by Dutch Barn, Dominguez stated that he worked as a laborer for Dutch Barn and never performed any work as a Landscape Equipment Operator before October 2005. Defendant's Motion, attached Affidavit of Angel Dominguez, ¶ 4. Dutch Barn began making contributions to the Fund for Dominguez in October 2005. Plaintiff's Motion, Exhibit 8, Audit Report Contribution Records. Dominguez also stated that he worked only on single-family residences. Id., ¶ 5. Dominguez later provided the Fund with an Affidavit in which he stated that from 2000 through 2005 he worked for Dutch Barn as a Landscape Equipment Operator on commercial properties. Plaintiff's Reply (d/e 29), Exhibit C, Second Affidavit of Angel Dominguez, ¶ 2.

The Court then allowed the parties to depose Dominguez in an attempt to resolve the inconsistencies. Text Order entered April 11, 2008. At his deposition, Dominguez stated that he became a foreman at Dutch Barn in 2000 and started learning how to operate landscaping equipment at that time. By 2003, he became skilled in operating equipment such as tractors and bobcats. Supplemental Brief in Support of Dutch Barn's Motion for Summary Judgment (d/e 35), attached Deposition of Angel Dominguez, at 24, 29. He started working as a Landscaping Equipment Operator in 2003 or 2004. Id., at ...


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