For the reasons above, DK’s Motion for Leave of Court to Respond to Plaintiff's Request
to Admit Pursuant to Rule 36(B), Jnstanter is GRANTED and the Trust Funds’ Motion for

Summary Judgment is GRANTED in part and DENIED in part.

ENTER:
a Otol
James BrZagel a

United States District Judge
pate. _ HAR 0.6 2003


Trust Funds’ Summary Judgment Motion

Summary judgment is appropriate if there is no genuine issue of material fact thus
entitling the Trust Funds to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists if there is sufficient
evidence for a jury to return a verdict in favor of DK on any particular issue. Methodist Medical
Center of Illinois v. American Medical Sec. Inc., 38 F.3d 316, 319 (7th Cir. 1994). For the
purposes of this motion, I must draw all justifiable inferences in the light most favorable to DK
and must resolve any doubt against the Trust Funds. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). ,

The Trust Funds claim that, based on DK’s failure to answer its request for admissions, it
is undisputed that they are owed $28,726.10 from March 2001 through December 2001. DK
denies that it owes the entire amount,” but this blanket denial does not entirely preclude summary
judgment because it is undisputed that DK owes at least $22,558.06 of the amount for November
and December 2001 and $5,4441.94 in statutory damages. As such, summary judgment is
appropriate as it relates to these amounts and is thus granted in favor of the Trust Funds.
Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928 (7th Cir. 1995); Transportation
Communications Intern. Union v. CSX Transp., Inc., 30 F.3d 903, 904 (7th Cir. 1994). Summary
judgment is inappropriate, however, as to the remaining $6,168.04 allegedly owed from March
2001 through October 2001 and any statutory damages for this amount. As such, summary

judgment is denied as it relates to these amounts.

> | find that DK was given proper notice of the motion, and even if not, they suffered no
prejudice.



Mite Order Form (0697)

“sy

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

James B. Zagel Sitting Judge if Other
than Assigned Judge

No notices required.

Mail AO 450 form.

Notices mailed by judge's staff.

Notified counsel by telephone. MA R 1.0.

oY | Docketing to mail notices

Copy to judge/magistrate judge.

DW

CASE NUMBER 02 C 2595 DATE 3/6/2003
CASE CARPENTERS, ET AL vs. D K ENVIRONMENTAL SYSTEMS, INC.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiT, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented. ]
DOCKET ENTRY:
(i) Oo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) im} Answer brief to motion due___. Reply to answer briefdue____
(4) o Ruling/Hearing on setfor____at
(5) a Status hearing[held/continued to] [set for/re-set for]on _setfor_ at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on___—s set for at
(7) o Trial[set for/re-set for] on__at
(8) im (Bench/Jury trial] [Hearing] held/continued to__at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OLocal Rule 41.1 OOFRCP41(a)(1) OJ FRCP41(a)(2).

ao) [Other docket entry] Motion (6-1) for summary judgment is granted/denied in part.
(i) @ (For further detail see order attached to the original minute order.]

No notices required, advised in open court Document.

Number

umber of notices

fie Yeputyiitias
courtroom, Qb:6 RY L- ven eu date mailed notice
deputy’s

initials

OT G3- Gakitiedeceived in

central Clerk's Office alg depuy ni



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CHICAGO DISTRICT COUNCIL OF
CARPENTERS PENSION FUND, et al.,

Plaintiffs,
No. 02 C 2595
v. Judge James B. Zagel

DK ENVIRONMENTAL SYSTEMS, INC.,
ss
Defendants go
refendants, w x ys

MEMORANDUM OPINION AND ORDER wes

This action arises under Section 502 of the Employee Retirement Income Security Act
(“ERISA”) and Section 301 of the Taft-Hartley Act. 29 U.S.C. §§ 1132 and 185. The Chicago
and Northeast Illinois District Council of Carpenters (“Union”) entered into an agreement with
DK Environmental Systems, Inc., under which DK agreed to submit monthly reports listing the
number of hours worked by its carpenter employees and to pay fringe benefits to the Union’s
Trust Funds based upon these listed hours. Pursuant to a Freedom of Information Act request,
the Trust Funds obtained certified payroll documents, which indicated hours worked by DK’s
carpenter employees. Once the Trust Funds received these documents, they were able to
determine that the monthly reports submitted by DK allegedly understated the amount of hours
worked by its carpenter employees and subsequently failed to pay $28,726.10 in contributions for
the period of March 2001 through December 2001. As a result of their findings, the Trust Funds

filed suit against DK.’ On or about December 11, 2002, the Trust Funds served DK with several

' Trust Funds stand in the position of a third party beneficiary to a collective bargaining
agreement, with the ability to enforce the agreement in their own right. Central States, Southeast
and Southwest Areas Pension Fund v. Gerber Truck Service, Inc., 870 F.2d 1148 (7th Cir.



discovery requests, including a request for admissions. Within this request was a specific request
for DK to admit that it failed to pay the aforementioned $28,726.10 plus statutory damages. DK
failed to respond or deny the admission within 30 days. On the basis of this failure to deny, the
Trust Funds moved for summary judgment. In response, DK moved for leave to file an answer

to the Trust Funds’ original request for admissions denying that it owes the entire amount.

DK’s Motion for Leave to File an Answer

Pursuant to Federal Rule of Civil Procedure 36, DK’s failure to respond to the Trust
Funds’ request for admissions within 30 days deems the requested admissions admitted. See
United States v. Kasuboski, 834 F.2d 1345, 1349 (7th Cir. 1987). While this is a true statement
of the law, I believe that its application in the present case would be too harsh a penalty to
impose on DK, especially in light of the fact that the request was served simultaneously with
other discovery. DK freely admits that it neglected the request for admission, and similar neglect
was the same basis on which leave to file a late answer to a request for admission was granted in
Marshall v. Sunshine and Leisure, Inc., 496 F. Supp. 354 (M.D. Fla. 1980). While I do not
condone DK’s behavior, I see no reason why I should not exercise discretion to allow them to file
a late answer to the request for admission as the court did in Marshall. See also Ameribanc Sav.
Banks, F.S.B. v. Resolution Trust Corp., 858 F.Supp. 576 (E.D. Va, 1994), Accordingly, I grant
leave and hereby incorporate DK’s answer to the request, filed instanter, into the summary

judgment record.