The opinion of the court was delivered by: Richard Mills, U.S. District Judge:
E-FILED Monday, 19 December, 2011 05:08:59 PM Clerk, U.S. District Court, ILCD
Pending before the Court is the Plaintiffs' Motion for summary judgment.
This action is brought pursuant to the Labor Management Relations Act, as amended, 29 U.S.C. § 185(a), and the Employee Retirement Security Act of 1974 (ERISA), as amended 29 U.S.C. § 1001 et seq. PlaintiffS Central Laborers' Pension, Welfare, and Annuity Funds, et al. seek the entry of summary judgment against Defendant Alliance Concrete Construction, L.L.C. ("ACCL"), for two counts of the Plaintiffs' Complaint. Count II of the Complaint sought a payroll audit of ACCL and, if delinquent contributions were identified, payment of those contributions. Count V sought judgment against ACCL as a successor to Alliance Foundations, Inc. ("AFI"), for contributions owed by AFI. On May 31, 2011, the Court entered judgment against AFI in the amount of $370,028.19 for past due fringe benefit contributions, liquidated damages, and audit costs.
The Plaintiffs now seek judgment against ACCL in the amount of $10,094.50 for audit liabilities, liquidated damages, and audit costs for the audit completed of ACCL and $370,028.19 for past due fringe benefit contributions, liquidated damages, and audit costs resulting from an audit of AFI based on the theory of successor liability.
II. FACTUAL BACKGROUND*fn1
The Plaintiffs are employee benefit funds administered pursuant to the terms and provisions of certain Agreements and Declarations of Trust and are required to be maintained in accordance with the provisions of the Labor Management Relations Act of 1947 and the ERISA. ACCL is a concrete construction contractor and thus is an Employer engaged in an industry within the meaning of ERISA, 29 U.S.C. § 1002(5), (11), (12), and (14). The Defendant has employed individuals who are members of Local Union No. 309 Laborers' International Union of North America and said individuals are participants in the Plaintiffs' employee benefit funds.
ACCL filed its Articles of Incorporation on March 28, 2005. ACCL is owned by Allied Investment Group, L.L.C., which was incorporated on March 11, 2005. At the time Allied Investment was incorporated, Michael Wardlow owned one-third of the company. Wardlow now owns 50% of Allied Investment Group.
AFI was a concrete construction contractor which was incorporated in Iowa on January 22, 2002. AFI was owned by Jack Laud and Mike Wardlow. Laud and Wardlow served as officers of AFI but only Wardlow was a director of AFI. AFI ceased operations in March of 2005 and was involuntarily dissolved by the Iowa Secretary of State on August 7, 2006.
Alliance Commercial Concrete, Inc. (ACCI) was a concrete construction contractor which was incorporated in Iowa on December 12, 2002. ACCI was owned by Jack Laud and Mike Wardlow and both served as officers and directors of the company. ACCI stopped operating in March of 2005.
Mike Wardlow is currently a general manager of ACCL and has supervised its operations since its incorporation. ACCL received equipment, vehicles and tools of the trade from AFI and ACCI. At the time of its incorporation, ACCL, through its members or managers, knew that the Plaintiffs had made a demand to ACCI for payments of delinquent contributions owed to the Plaintiffs. Although ACCL has not signed a labor agreement, it has submitted report forms and made contributions to the Plaintiffs since it began operations in April of 2005.
ACCL has agreed to two payroll compliance examinations requested by the Plaintiffs since April of 2005. The first exam of ACCL covered the period of October of 2005 through December 31, 2006. The report for the first examination was issued on March 6, 2007, and found contributions owed of $725.95. The second report for ACCL covered the period of October of 2005 through December of 2009. The second report was issued on April 23, 2010, and found $10,094.50 was due for employer contributions to the Plaintiffs. The Plaintiffs forwarded that report to ACCL's attorney on May 19, 2010, with a demand for payment.
ACCL presented several challenges to the report. However, the Plaintiffs requested more information on some of the challenges and the ACCL never responded to the request. During the period that ACCI was in operation, it had signed several labor agreements including a highway construction agreement on May 30, 2003, and a building construction agreement on June 24, 2003. ACCI had also agreed to a payroll compliance examination requested by the Plaintiffs. On November 14, 2005, a report was issued for contributions offered by ACCI. That report showed contributions due of $8,288.60. ACCI paid the amounts listed in the report. While conducting the examination of ACCL, the ...