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Chicago Area I. B. of T. Health and Welfare Trust Fund v. Olympic Wholesale Produce, Inc.

United States District Court, N.D. Illinois, Eastern Division

July 9, 2019



          Robert M. Dow, Jr. United States District Judge

         Currently before the Court are the parties' cross-motions for summary judgment on Count III of Plaintiff's amended complaint, which alleges that Defendant 765 Busse Highway Apartments LLC is jointly and severally liable for Defendant Olympic Wholesale Produce, Inc.'s withdrawal liability owed to Plaintiff Chicago Area I.B. of T. Pension Trust Fund. See [34]; [38]. For the reasons explained below, the Court grants Plaintiff's motion [34] and denies Defendants' motion [38]. Busse Apartments is jointly and severally liable for the withdrawal liability owed by Defendant Olympic Wholesale Produce, Inc. to the Chicago Area I.B. of T. Pension Trust Fund. As of today, that liability totals $258, 002.86. Additionally, Plaintiff is given leave to file a motion for (1) supplemental interest starting from October 19, 2018 and (2) attorneys' fees and costs. That motion should be filed no later than July 22, 2019. The Court sets this case for further status hearing on July 25, 2019 at 10:00 a.m. to discuss the remaining issues in the case.

         I. Background

         On January 11, 2018, the Chicago Area I.B. of T. Health and Welfare Trust Fund, the Chicago Area I.B. of T. Pension Trust Fund, and the Chicago Area I.B. of T. Severance and Retirement Fund (collectively, “the Funds”) by and through their Trustees Howard C. Murdoch, Ronald Sandack, Patrick Bruno, and Michael G. Philipp filed this action under the Employee Retirement Income Security Act of 1974 (“ERISA”). See generally [1]. The original complaint named Olympic Wholesale Produce, Inc. (“Olympic Produce”) and Nicholas Doumouras as defendants, alleging that Olympic Produce failed to pay employee benefit fund contributions and that it and Doumouras were jointly and severally liable for all unpaid amounts that were owed to the Funds (“Count I”). Id.

         Plaintiffs subsequently amended their complaint to add two additional counts. See generally [12]. Specifically, Plaintiff Chicago I.B. of T. Pension Trust Fund (“the Pension Fund”) alleged that Olympic Produce withdrew from the Pension Fund and thus incurred withdrawal liability, which Olympic Produce failed to pay (“Count II”). [12, ¶¶ 14-15, 21.] The Pension Fund also claimed that defendants Olympic, LLC and 765 Busse Highway Apartments LLC (“Busse Apartments”) were jointly and severally liable for Olympic Produce's withdrawal liability (“Count III”). [Id. ¶ 46.]

         On June 13, 2018, the Court entered a default judgment against Olympic Produce for Counts I and II. See generally [26]. The Pension Fund subsequently moved for summary judgment against Busse Apartments on Count III. See generally [34]. Defendants also filed a cross-motion for summary judgment. See generally [38]. Pursuant to Local Rule 56.1(a)(3), the Pension Fund submitted a statement of material facts in support of its motion for summary judgment. See generally [35]. Defendants have done the same. See generally [49]. The following facts are undisputed facts for purposes of deciding the summary judgment motions.

         The Pension Fund is a multiemployer pension plan funded by contributions from over 35 employers. [49, ¶ 1.] Olympic Produce is an Illinois corporation. [Id. ¶ 2.] Olympic Produce incurred withdrawal liability as to the Pension Fund pursuant to the successive bargaining agreements it entered with the various Plaintiff Funds in December 2017 when Olympic Produce closed as a result of a legal action filed by its produce suppliers to recover on unpaid invoices. [Id. ¶¶ 6-18.] In December 2017, Doumouras owned 100 percent of Olympic Produce. [Id. ¶ 20.]

         Busse Apartments is a for-profit limited liability company. [Id. ¶ 21.] In December 2017, the Nicholas Doumouras Revocable Trust owned 95 percent of Busse Apartments. [Id. ¶ 22.] As of December 2017, Doumouras was the sole beneficiary of the Nicholas Doumouras Revocable Trust. [Id. ¶ 23.] Busse Apartments earns rental income by leasing out apartment units at 765 Busse Highway, Park Ridge, Illinois, which it owns. [Id. ¶¶ 24-25]. Busse Apartments has a Federal Employer Identification Number (“FEIN”) and receives tax deductions. [Id. at ¶¶ 26-27.] Finally, in Busse Apartments' Operating Agreement, it states that “[t]he business of the Company shall be to engage in the acquisition, ownership, leasing, management, and operation of real estate * * *.” [39-1, 12.]

         II. Legal Standard

         Summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See Fed.R.Civ.P. 56(a). Rule 56 makes clear that whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Id. In determining whether summary judgment is appropriate, the Court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Majors v. Gen. Elec. Co., 714 F.3d 527, 532 (7th Cir. 2013) (citation omitted). But a non-moving party “is only entitled to the benefit of inferences supported by admissible evidence, not those ‘supported by only speculation or conjecture.'” Grant v. Trs. of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017) (citation and quotation marks omitted). Rule 56(a) “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against any party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party would bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, the moving party may meet its burden by pointing out to the court that “there is an absence of evidence to support the nonmoving party's case.” Id. at 324.

         It is not the role of the Court to scour the record in search of evidence to defeat a motion for summary judgment; instead, the nonmoving party bears the responsibility of identifying evidence to defeat summary judgment. Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008). To avoid summary judgment, the nonmoving party must go beyond the pleadings and “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted). For this reason, the Seventh Circuit has called summary judgment the “put up or shut up” moment in a lawsuit-“when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” See Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007). In other words, the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.

         Finally, as courts in this district have repeatedly noted, when, as here, parties have filed cross-motions for summary judgment, the analytical endeavor can be a Janus-like one that can require consideration of any legitimate factual disputes in the record as they bear on each movant's respective summary judgment claims. See, e.g., Northern Contracting Inc. v. State of Illinois, 2004 WL 422704, *46 (N.D. Ill. March 3, 2004) (“In cases such as this involving cross-motions for summary judgment, ‘the court must extend to each party the benefit of any factual doubt when considering the other's motion-a Janus-like perspective * * *.'”) (quoting Buttitta v. City of Chicago, 803 F.Supp. 213, 217 (N.D. Ill.1992)). The Court proceeds accordingly.

         III. Analysis

         Nowhere in Defendants' motion for summary judgment or in Busse Apartment's response to Plaintiff's motion for summary judgment do they suggest that Olympic Wholesale does not owe withdrawal liability or the amount of that debt. And, in any case, Defendants have waived the argument given that Judge Blakey entered a default judgment order [26] setting forth the amount of withdrawal liability owed by Olympic Produce pursuant to its agreement with the Plaintiff Funds.[1] Consequently, the only dispute before ...

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