United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION & ORDER
Honorable Thomas M. Durkin Judge
Laborers' Pension Fund and Laborers' Welfare Fund of
the Health and Welfare Department of the Construction and
General Laborers' District Council of Chicago and
Vicinity (together, the “Funds”), along with the
Funds' administrator James S. Jorgensen, sued defendants
Fuertes Systems Landscaping, Inc., Fuerza Concrete, Inc.,
Hacienda Landscaping, Inc., and Rafael Hurtado, to recover
delinquent contributions and other amounts allegedly owed to
the Funds pursuant to Sections 502(e)(1) and (2) and 515 of
the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. §§ 1132(e)(1) &
before the Court is plaintiffs' motion for summary
judgment. R. 113. In a status report filed on February 16,
2018 addressing defendant Hurtado's bankruptcy
proceedings, plaintiffs explain that they have reached a
tentative settlement that will resolve this case as to
defendants Hurtado, Fuertes, and Fuerza. R. 172. Plaintiffs
represent that “the sole remaining issue left for the
Court to resolve” if the settlement proceeds as
expected “will be the alleged liability of Defendant
Hacienda Landscaping, Inc.” Id. The Court
therefore addresses only the portion of plaintiffs'
motion relevant to Hacienda's joint and several
liability. Plaintiffs maintain that summary judgment is
appropriate on the issue of whether Hacienda is jointly and
severally liable as a single employer or alter ego of
reasons set forth below, the Court denies plaintiffs'
motion for summary judgment as to Hacienda's joint and
several liability. The Court denies without prejudice the
remaining portion of plaintiffs' motion in light of
plaintiffs' representations in the February 16 status
Fuertes' Business and Collective Bargaining
the relevant period of 2008 to 2012, Fuertes performed
residential and public construction work. FR & HR ¶ 20.
Fuertes entered into a collective bargaining agreement
(“CBA”) with the Construction and General
Laborers' District Council of Chicago and Vicinity union,
which binds Fuertes to certain trust agreements with the
Funds. FR & HR ¶¶ 5, 11, 12. Those trust agreements
in turn require Fuertes to submit monthly benefit reports and
contribution payments “for each hour worked by all
Employees covered by [the CBA].” Id.
Relationship between Fuertes and Hacienda
the relevant period of 2008 to 2012, Hacienda was a
landscaping company owned by defendant Hurtado's sister
Maria Guzman. FR & HR ¶¶ 21, 48; PR-Hacienda ¶
2. Hacienda's registered address was Guzman's home
address. FR & HR ¶ 49.
precise relationship between Fuertes and Hacienda is disputed
by the parties, in particular based on two affidavits Guzman
submitted on behalf of herself and on behalf of Hacienda in
support of Hacienda's opposition to summary judgment.
Hacienda-Exs. 1, 16. These affidavits contest most of the
factual points supported by the testimony of Fuertes
employees on which plaintiffs rely.
begin, Guzman's actual managerial authority over Hacienda
is contested. During her deposition, Guzman could not recall
many details about Hacienda's operations, including what
tools or equipment it rented, how many employees it had, or
the names of three of its drivers. FR & HR ¶¶
53-54. In Guzman's affidavit submitted on behalf of
herself in support of Hacienda's summary judgment
opposition, Guzman represented that based on her deposition
notice, she was not aware that she would be asked questions
about Hacienda's business and so was not prepared to
answer those questions. Hacienda-Ex. 16 ¶ 20.
affidavit on behalf of Hacienda sets forth significantly more
detail than her deposition about Hacienda operations.
Hacienda-Ex. 1. Guzman represented that Hacienda at all times
had its own insurance coverage, offices, storage space,
computer system, office equipment, tools, and bank accounts.
PR-Hacienda ¶ 6; Hacienda-Ex. 1 ¶¶ 12, 13, 14,
15, 16. Guzman's affidavit denied that Hacienda ever
received money from Fuertes. PR-Hacienda ¶ 5.
extent of overlap among Fuertes and Hacienda management and
employees also is contested by the parties. The parties
dispute whether Hurtado told Fuertes employees that Hacienda
was his other company, FR & HR ¶ 58, and whether he told
them that union employees would work for Fuertes and
non-union employees would work for Hacienda. FR & HR ¶
41; P-Ex. K at 34-36; see also PR-Hacienda ¶ 3
(Hurtado testified that he had no involvement in Hacienda).
The parties also dispute whether and to what extent Edgar
Rubio acted as a superintendent for both Hacienda and Fuertes
and directed work to employees of both companies. FR & HR
undisputed that for part of the relevant time period, Guzman
served as the office manager for Fuertes while also serving
as president of Hacienda. FR & HR ¶¶ 22, 24;
PR-Hacienda ¶ 2. But her responsibilities as office
manager of Fuertes are contested. It is clear that she
processed weekly payroll for Fuertes, recorded daily employee
hours, completed and submitted union benefit reports, filed
and paid bills, and signed and issued checks. FR & HR ¶
24. But it is disputed whether Guzman had authority to decide
what information was placed on Fuertes payroll records or
union reports, id., whether she was an officer of
Fuertes, FR & HR ¶ 23, whether she attended any
corporate meetings for ...