### UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA INTERNATIONALPAINTERS AND ALLIEDTRADES INDUSTRY PENSION FUND 

### etal., Plaintiffs,



### v. BENCHMARKCONSTRUCTION SERVICES, INC. 

### etal., ) ) ) ) ) 

### ) Civil Case No. 08-1966 (RJL) ) ) ) ) )**De~ndanb.** 

### )

# MEMORAN~RDER (JuneZ-z.; 2010) [#17] Plaintiffs, International Painters and Allied Trades Industry Pension Fund (the "Fund") and Gary 1. Meyers, in his official capacity as a fiduciary ("Meyers" and, together with the Fund, the "plaintiffs") filed this action against Benchmark Construction Services, Inc. (the "Company"), Jefferson Medley ("J. Medley"), and Shirley Medley ("S. Medley" and, togetherwith the Company and 1. Medley, the "defendants"), alleging that the defendants failed to make contributions to the Fundrequired under a binding collective bargaining agreement. OnFebruary 24,2009, the Court issued a Scheduling Orderthat included deadlines for filing dispositive motions, oppositions, and replies. Scheduling Order, Feb. 24, 2009 (Okt. 11). OnJuly 29,2009, the Court granted ajoint motion to amend the Scheduling Order, extending the deadlines for the dispositive motions, oppositions, and replies. Minute Order, July 29,2009. On September 9,2009,the Court granted a secondjointmotion to amend the scheduling orderto extendthese deadlines, stating: "Itis hereby ORDERED that the date for filing dispositive motions shall be October 13,2009, the oppositions shall be filed on orbefore October27,2009, and replies shall be due November 10,2009." Minute Order, Sept. 9, 2009. Perthat Minute Order, plaintiffs filed aMotion for Summary Judgment on October 13,2009. Pis.' Mot. Summ. J., Oct. 13, 2009 (Dkt. 17). J. Medley and S. Medley (together, the "individual defendants") also filed aMotion for Summary Judgment on the

same day. Defs.' Mot. Summ. J., Oct. 13,2009 (Dkt. 16). The motion filed by the individual defendants was fully briefed, with an opposition filed by the plaintiffs on October 27,2009 (Dkt. 19), and a reply filed by the individual defendants on November 9, 2009 (Dkt. 20). In contrast, none ofthe defendants filed an opposition to the plaintiffs' Motion for Summary Judgment. The closest approximation ofan opposition was the reply filed by the individual defendants in support oftheir ownmotion, for which the docket entry reads, "REPLYto opposition to motion re [16] MOTION for Summary Judgment, [17] MOTION for Summary Judgment filed by JEFFERSON MEDLEY, SHIRLEYMEDLEY." (Dkt. 20.) The face ofthat document, however, only reflects that it is "Defendants Jefferson And Shirley Medley's Reply In Support OfTheirMotion For Summary Judgment," with no mention ofit serving the dual purpose ofalso opposing plaintiffs' motion. Defs.' Reply 1(Dkt. 20). Local Rule ofCivil Procedure 7(b) provides that an opposingparty has 14 days to

2file a memorandum in opposition to the motion, and ifsuch party fails to do so, the Court may treat the motion as conceded. LCvR7(b). This rule is a "docket-managementtool that facilitates efficient and effective resolution ofmotions by requiring the prompt joining ofissues." Fox v. AmericanAirlines, Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004). In Fox, the D.C. Circuit affirmed the District Court'sholding that "becausethe plaintiffs failed to respond to the defendant's

... motion, the courttreats the motion as conceded and grants the motion." Id. (citations omitted). Whether to treat the motion as conceded under Local Rule 7(b) is highly discretionary. OurCircuit Courthas itselfnoted that "[w]herethe district court relies on the absence ofa response as a basis for treating the motion as conceded, we honor its enforcement ofthe rule." Twelve John Does v. District of Columbia, 117 F.3d 571,577 (D.C. Cir. 1997). Furthermore, even ifthis Courtwere to generously construe the individual defendants' reply in support oftheir own motion as an opposition to the plaintiffs' motion, such an opposition would not have been filed in a timely manner, and the individual defendants have neverrequested leave to file out of time. See Fed. DepositIns. Corp. v. Bender, 127 F.3d 58, 68 (D.C. Cir. 1997) (finding

no abuse ofdiscretion in district court's decision to treat motion for summaryjudgment as conceded when opposingparties did not seek extension oftime to file their opposition). In light ofthe fact that all defendants failed to file an opposition to the plaintiffs' motion, despite being fully aware ofthe briefing schedule orderedby this Court, as evidenced by the briefing on the Motion for Summary Judgment filed on behalfofthe

3individual defendants, the Court will treatthe plaintiffs' motion as conceded. LCvR 7(b). Therefore, in light ofthe concession and the Court'sreview ofthe motions, the relevant law cited therein, and the record, it is hereby ORDERED that the plaintiffs' Motion for Summary Judgment [#17] is GRANTED; and it is further ORDERED thatjudgment is entered in favor ofplaintiffs and against the Company in the amount of$147,970.30; and it is further ORDERED that individual defendants, along with the Company, shall bejointly and severally liable for contributions to the Fund in the amount of$80,302.04, plus interest in the amount of$3,190.89; and it is further ORDERED that individual defendants, along with the Company, are alsojointly and severally liable for attorneys' fees and costs in the amount of$38,841.70; and it is furtherORDERED that individual defendants shall also bejointly and severally liable for any losses to the Fund resulting from individual defendants' breach offiduciary duty, which plaintiffs may establish through supplementary evidence. 

### SO ORDERED.

United States DistrictJudge

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