Mason Tenders Dist. Council Welfare Fund v. LJC Dismantling Corp.

• Citation: 400 F.Supp.3d 7
• Decision Date: 11 September 2019
• Docket Number: 17-cv-4493 (VSB)
• Parties: MASON TENDERS DISTRICT COUNCIL WELFARE FUND, Pension Fund, Annuity Fund, Training Fund, Health and Safety Fund, and Dominick Giammona, as Funds' Contributions/Deficiency Manager, Plaintiffs, v. LJC DISMANTLING CORP., Defendant.
• Court: U.S. District Court — Southern District of New York

400 F.Supp.3d 7

MASON TENDERS DISTRICT COUNCIL WELFARE FUND, Pension Fund, Annuity Fund, Training Fund, Health and Safety Fund, and Dominick Giammona, as Funds' Contributions/Deficiency Manager, Plaintiffs,

v.LJC DISMANTLING CORP., Defendant.

17-cv-4493 (VSB)

United States District Court, S.D. New York.

Signed September 11, 2019

Bruce Lawrence Listhaus, Denise Kennedy, Joy Kim Mele, Andrew A. Gorlick, Gorlick, Kravitz & Listhaus, P.C., New York, New York, Michelle Adams Callner, Redman Law, PLLC, New York, New York, Counsel for Plaintiffs.

Michael Marc Rabinowitz, Rabinowitz and Galina, Esqs., Mineola, New York, Susan Joy Deith, Garden City, New York, Counsel for Defendant.

OPINION & ORDER

VERNON S. BRODERICK, United States District Judge:

Mason Tenders District Council Welfare Fund, Pension Fund, Annuity Fund, Training Fund, and Health and Safety Fund (the "Funds")—jointly administered, multi-employer, labor management trust funds established and maintained pursuant to various collective bargaining agreements in accordance with Sections 302(c)(5) and (c)(6) of the Labor Management Relations Act of 1947, 29 U.S.C. §§ 186(c)(5), (c)(6) —along with Dominick Giammona, in his fiduciary capacity as the Funds' Contributions/Deficiency Manager (together with the Funds, "Plaintiffs"), bring this action pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq., and New York law. Plaintiffs sued LJC Dismantling Corp. ("LJC") after LJC failed to remit fringe benefits, dues checkoffs, and Political Action Committee ("PAC") contributions to the Funds pursuant to a collective bargaining agreement. Before me are Plaintiffs' motion for summary judgment and LJC's cross-motion for partial summary judgment. Because LJC stipulated to the majority of Plaintiffs' deficiency calculations and because I find that there is no genuine issue of material fact as to Plaintiffs' remaining calculations, Plaintiffs' motion for summary judgment is GRANTED and LJC's cross-motion is DENIED.

I. Factual Background ¹

The Funds provide fringe benefits to eligible employees on whose behalf employers in the construction industry contribute to the Funds pursuant to collective bargaining agreements ("CBAs") with the Mason Tenders District Council of Greater New York (the "Union"), to which such employers are bound. (Pls.' 56.1 ¶ 4.)² The Funds are third-party beneficiaries of these CBAs. (Id. ¶ 5.) At all times relevant to this action, CBAs were in effect between the Union and the New York City Demolition Contractors Association ("DCA") and the Interior Demolition Contractors Association ("IDCA"). (Id. ¶¶ 13–14, 16–17.) Defendant LJC is a member of both the DCA and IDCA and was thus bound by those CBAS. (Id. ¶¶ 12–17.)

The CBAs require LJC to make fringe benefit contributions to the Funds for each hour of work performed by its employees within the trade and geographic jurisdiction of the CBAs. (Id. ¶ 18.) The CBAs also require LJC to deduct and remit dues checkoffs and PAC contributions from the wages of LJC employees performing that work. (Id. ¶ 19.) The CBAs further require LJC to permit the Funds to inspect and audit LJC's books and records to confirm payment of all contributions owed pursuant to the CBAs. (Id. ¶¶ 20–21.)

Beginning in August 2012, Plaintiffs' accounting firm, Schultheis & Panettieri, LLP ("S&P"), conducted three audits of LJC's books and records. (Id. ¶¶ 22–24; see also Pls.' 56.1 Counterstatement ¶ 32.)³ The first of these audits (the "First Audit") covered the period from January 1, 2009 through March 31, 2013, and revealed that LJC failed to pay $353,088.22 in principal fringe benefit contributions, and failed to remit $38,393.37 in principal dues checkoffs and PAC contributions, reflecting a total of 20,518.90 unreported employee hours. (Pls.' 56.1 ¶ 22.)⁴ The second of these audits (the "Second Audit") covered the period from April 1, 2013 through March 31, 2016, and revealed that LJC failed to pay $180,196.16 in principal fringe benefit contributions, and failed to remit $16,654.67 in principal dues checkoffs and PAC contributions, reflecting a total of 9,211.50 unreported employee hours. (Id. ¶ 23.) The last of these audits (the "Third Audit") covered the period from April 1, 2016 through October 1, 2017, and revealed that LJC failed to pay $109,589.70 in principal fringe benefit contributions, and failed to remit $10,271.12 in principal dues checkoffs and PAC contributions, reflecting a total of 4,896.50 unreported employee hours. (Id. ¶ 24.)

II. Procedural History

Plaintiffs filed their complaint on June 14, 2017, alleging claims pursuant to ERISA § 515, 29 U.S.C. § 1145, as well as New York breach of contract claims, for LJC's allegedly delinquent fringe benefit contributions, dues checkoffs, and PAC contributions associated with the First Audit period. (See generally Doc. 1.) Plaintiffs also sought an order directing LJC to permit a further audit of its books and records. (Id. ¶¶ 56–58.) On January 4, 2018, Plaintiffs filed an amended complaint, which added claims for unpaid fringe benefit contributions, dues checkoffs, and PAC contributions associated with the Second and Third Audit periods. (See generally Doc. 19.)⁵ In addition to payment of all delinquent contributions and dues checkoffs, Plaintiffs seek prejudgment interest, liquidated damages, audit costs, and reasonable attorney's fees. (Id. at 22–25.)

Plaintiffs served their First Request for the Production of Documents and their First Set of Interrogatories on LJC on November 22, 2017. (Pls.' 56.1 ¶¶ 58–59.) LJC did not respond to either of these discovery demands. (Id. )

On March 16, 2018, the parties entered into a Stipulation, pursuant to which LJC agreed that it "d[id] not dispute" the findings of the Second and Third Audits. (Stip. ¶¶ 8–9.)⁶ With respect to the First Audit, the parties agreed that LJC's dispute was limited to the First Audit's findings of unreported hours for five individuals (collectively, the "Disputed Individuals"). (Id. ¶ 10.) On March 26, 2018, Plaintiffs served their First Set of Interrogatories as to the Disputed Individuals; LJC failed to respond. (Pls.' 56.1 ¶¶ 38–39.) Plaintiffs served Requests for Admission ("RFAs") on LJC on April 2, 2018. (Id. ¶ 40.) To date, LJC has not responded to Plaintiffs' RFAs. (Id. ¶ 42.) The Stipulation and the unanswered RFAs were both referenced during the July 12, 2018 post-discovery conference, (see 7/12/18 Tr.),⁷ and in the parties' June 28, 2018 joint letter submitted prior to that conference, (Doc. 31, at 2–3).

On July 23, 2018, LJC filed a "Consent to Change Attorney" form, substituting attorney Michael M. Rabinowitz for LJC's former counsel, Ira A. Sturm. (Doc. 33.)

On August 24, 2018, Plaintiffs filed their motion for summary judgment, (Doc. 35), along with a memorandum of law in support, (Doc. 37), a Rule 56.1 statement, (Doc. 36), and supporting declarations with exhibits, (Docs. 38–41). On November 27, 2018, LJC filed an opposition, (Doc. 60), a counterstatement to Plaintiffs' Rule 56.1 statement, (Doc. 59), and two supporting declarations, (Docs. 57–58). Plaintiffs filed their reply on January 3, 2019. (Docs. 73–74.)

On October 11, 2018—while the parties were briefing Plaintiffs' motion for summary judgment—LJC filed a cross-motion for partial summary judgment, (Doc. 47), a memorandum of law in support, (Doc. 50), a Rule 56.1 statement, (Doc. 51), and supporting declarations, (Docs. 48–49). On November 30, 2018, Plaintiffs filed their opposition, (Doc. 67), a counterstatement to LJC's Rule 56.1 statement, (Doc. 64), and two additional supporting declarations with exhibits, (Docs. 65–66). LJC filed its reply and supporting papers, (Docs. 68–71), on December 20, 2018.

III. Legal Standard

Summary judgment is appropriate when "the parties' submissions show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir. 2002) ; see also Fed. R. Civ. P. 56(a). "[T]he dispute about a material fact is ‘genuine[ ]’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law," and "[f]actual disputes that are irrelevant or unnecessary will not be counted." Id. On a motion for summary judgment, the moving party bears the initial burden of establishing that no genuine factual dispute exists, and, if satisfied, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial," id. at 256, 106 S.Ct. 2505, and to present such evidence that would allow a jury to find in his favor, see Graham v. Long Island R.R. , 230 F.3d 34, 38 (2d Cir. 2000).

To defeat a summary judgment motion, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials ...." Fed. R. Civ. P. 56(c)(1). In the event that "a party fails ... to properly address another party's assertion of fact as required by Rule 56(c), the court may," among other things, "consider the fact undisputed for purposes of the motion" or "grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it." Fed. R. Civ. P. 56(e)(2), (3).

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