1-35. Defendants admit the facts set forth in paragraphs 1 through 35.

36. Defendants deny that Commercial Brick and American Brick are alter
egos and the same company. For purposes of defending the subject
action, the Defendants are not contesting the “alter ego” allegations of
Plaintiffs.

37. Defendants admit the allegations of paragraph 37.

38-62. Defendants deny that the “facts” set forth in paragraphs 38-62 are
undisputed, and to the contrary, Defendants allege that these paragraphs
contain substantial material facts which are contested and disputed, and
as such, should result in denial by this Court of Plaintiffs’ motion for
summary judgment.

Defendants’ blanket denial of Plaintiffs’ statements 38-62 does not approach conformity

with the requirements of Local Rule 56.1. While Defendants have technically provided a
“response to each numbered paragraph,” Defendants’ truncated response is void of any “specific
references to the affidavits, parts of the record, and other supporting materials relied upon.”
Further, Defendants have not provided their own statement of facts under Local Rule 56.1. Asa
result, Defendants have not effectively controverted any material fact set forth in Plaintiffs’
statement of facts. Because of the importance of Local Rule 56.1, the Seventh Circuit has
consistently upheld a district court’s discretion to strictly enforce it. Bordelon v. Chicago School
Reform Bd. of Trustees, 233 F.3d 524, 526-527 (7" Cir. 2000). Accordingly, the Court is well
within its discretion to deem admitted all supported facts set forth in Plaintiffs’ Rule 56.1
statement.

IL. Defendants’ Liability

The absence of a meaningful response by Defendants does not automatically result in

5 Summary judgment movants must file a statement consisting of “short numbered
paragraphs.” Local Rule 56.1(a)(3). Plaintiffs run afoul of this rule in paragraph 33 of their
statement, which recites the entire scope-of-work provision from the Illinois and Indiana
Landscape Contractors Labor Agreement.


CONCLUSION
Because there exists a genuine issue of material fact with respect to the extent of covered
work performed by Defendants’ employees, Plaintiffs’ motion for summary judgment is denied.
Dated: June 18, 2004 ENTERED

(de | Ao-4

AMY J. STAE
United States District Judge



Labor Agreement. These agreements required Defendants to make contributions to the Funds for
each hour worked by employees covered by the terms of the agreements. On July 24, 2002,
Plaintiffs filed the instant lawsuit, alleging Defendants’ delinquency in their contributions to the
Funds since 1996. Accordingly, Plaintiffs sought an audit of Defendants’ payroll books and
records in order to ascertain and recover the alleged unpaid contributions.

In November 2003, Plaintiffs completed a draft audit of Defendants’ records.’ From the
audit, Plaintiffs concluded that the Funds are entitled to payments of $317,920.01 in delinquent
contributions, $3,179.20 in liquidated damages, and $13,000 in auditing and attorneys’ fees. In
reaching this conclusion, the auditing accountant relied on “[Plaintiffs’] attorneys’ determination
that the .. . employees performed work defined under the scope of work provisions” in the
relevant agreements. (R. 35-1, Pl.’s Stmt. of Facts, Ex. 20 13, 15.)

ANALYSIS
I. Local Rule 56.1

As a threshold and potentially dispositive matter, the Court must address the requirements
of the Local Rules of the Northern District of Illinois. As stated above, summary judgment
movants must file a statement of facts to which non-movants must respond with some specificity
or risk admitting the movants’ facts. Plaintiffs submitted a statement of sixty-two facts, to which
Defendants responded with four statements. The Court will reproduce Defendants’ entire Rule

56.1 response, as doing so will not take much space:

? Plaintiffs allege that Defendants delayed and complicated the audit process by failing to
keep time records longer than six weeks. Additionally, Defendants do not maintain any payroll
records prior to 2000. As a result, Plaintiffs’ counsel obtained documents from third parties to
complete the audit.


summary judgment for the Plaintiffs. Instead, Plaintiffs must demonstrate through the
uncontested facts that they are entitled to summary judgment. As discussed below, Plaintiffs
have failed to meet their burden.

Plaintiffs seek judgment on the grounds that Defendants’ employees performed covered
activities and Defendants did not make corresponding contributions to the Funds. Plaintiffs seek
$254,194.89 in unpaid contributions under the Heavy and Highway and Underground Agreement
and/or Illinois Building Agreement, and $63,725.12 under the Illinois and Indiana Landscape
Contractors Labor Agreement. (R. 35-1, Pl.’s Stmt. of Facts {{] 59-60.) In support of their
assertion of the performance of covered activities, Plaintiffs point to the scope-of-work
provisions, job descriptions, and testimony of eyewitnesses who saw Defendants’ employees
performing certain tasks allegedly covered by the relevant agreements. The conclusions of
Plaintiffs’ auditors — leading to the dollar amounts listed above — specifically rely on the
assumption that the employees’ activities fall under the authority of the relevant agreements.

Plaintiffs’ assertions fail in at least two respects: (1) it is not clear that the employees’
activities fall under the scope of work provisions of the agreements; and (2) Plaintiffs do not
specify the duration of covered activities. Without evidentiary support in connection with both
of these issues, there remain genuine issues of material fact which must await trial for resolution.

Pointing to the opinion of the Eleventh Circuit Court of Appeals in Combs v. King, 764
F.2d 818 (11" Cir. 1985), Plaintiffs appear to argue that such details are unnecessary because of
Defendants’ lack of employment records. Even if the Court adopted the reasoning of the
Eleventh Circuit, however, summary judgment is still not appropriate. That case set forth a

burden-shifting procedure for use when an employer maintained insufficient records to determine


Minute Gider Form (06/9 36

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
rye Magistrate age Amy J. St. Eve than Assigned Judge
CASE NUMBER 02 C 5261 DATE 6/23/2004
CASE Dugan, et al vs. American Brick Paving, Inc.
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and () state briefly the nature
of the motion being presented.}

MOTION:

DOCKET ENTRY:

qd) ao Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motiondue__.

(6)) Oo 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__—sset fora

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor_— at.

(7) a Trial{set for/re-set for]on___—__at

(8) im (Bench/Jury trial] [Hearing] held/continuedto__at

(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) ClLocal Rule 41.1 COFRCP41(a\(1) ©) FRCP41(a)(2).

ao) [Other docket entry] | Enter Memorandum Opinion and Order. Plaintiffs’ motion for summary

judgment is denied.

(ie!

(1) @ [For further detail see order attached to the original minute order]

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benefit contribution requirements. According to this procedure, “an employee carries his burden
if he proves that he has in fact performed work for which he was improperly compensated and if
he produces sufficient evidence to show the amount and extent of that work as a matter of just
and reasonable inference.” Combs, 764 F.2d at 826 (citing Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680, 687, 66 S. Ct. 1187, 1192, 90 L. Ed. 1515 (1946)). Upon satisfaction of the
employee’s initial burden, “the burden then shifts to the employer to come forward with evidence
of the precise amount of work performed or with evidence to negative the reasonableness of the
inference to be drawn from the employee’s evidence.” Jd. The Combs court applied this burden-
shifting procedure, articlulated by the Supreme Court in the context of the Fair Labor Standards
Act (“FLSA”), to an ERISA case. Jd.

In this case, Plaintiffs have failed to carry their initial burden. While they have provided
ample evidence that Defendants’ employees performed certain tasks, they have not shown “as a
matter of just and reasonable inference” the extent to which those tasks are contemplated under
the relevant agreements or the amount of the work actually performed. While reference to
accounting audits may lend the illusion of reasonableness to Plaintiffs’ allegations, the numbers
in such reports are mere speculation arising from assumptions fed from attorney to accountant.
Plaintiffs have not provided evidence to support the initial assumptions made by the attorney.
Because Plaintiffs have not carried the initial burden of showing a reasonable inference of unpaid
contributions, the rule of the Eleventh Circuit does not serve them.

Plaintiffs have failed to show that there is no issue of material fact with regard to the
extent of covered work performed by Defendants’ employees. Accordingly, Plaintiffs’ motion

for summary judgment is denied.



IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
WILLIAM E. DUGAN, et al., )
Plaintiffs, ;
v. ) No. 02 C 5261
AMERICAN BRICK PAVING, INC., ;
and COMMERCIAL BRICK PAVING, INC., )
Defendants. }

DOCKETED

MEMORANDUM OPINION AND ORDER
JUN 2 4 2004

AMY J. ST. EVE, District Judge:

Plaintiffs brought this action in their capacity as trustees of various employee welfare
benefit plans (“the Funds”) to which Defendants were allegedly required to make fringe benefit
contributions on behalf of Defendants’ employees. Plaintiffs moved for summary judgment,
requesting unpaid contributions, liquidated damages, audit fees, and attorneys’ fees under the
Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1132, 1145 (“ERISA”). For
the reasons discussed below, Plaintiffs’ motion is denied.

LEGAL STANDARDS

Summary judgment is proper when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no
genuine issue of material fact, and that the moving party is entitled to a judgment as a matter of
law.” Fed. R, Civ. P. 56(c). The party seeking summary judgment has the burden of establishing
the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323,

106 S. Ct. 2548, 2552 (1986). A genuine issue of triable fact exists only if “the evidence is such

i


that a reasonable jury could return a verdict for the nonmoving party.” Pugh v. City of Attica,
259 F.3d 619, 625 (7" Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S. Ct. 2505, 2510 (1986)). A party will successfully oppose summary judgment only if it
presents “definite, competent evidence to rebut the motion.” Equal Opportunity Comm’n v.
Roebuck & Co., 233 F.3d 432, 437 (7" Cir. 2000). The Court “considers the evidentiary record
in the light most favorable to the non-moving party, and draws all reasonable inferences in his
favor.” Lesch v, Crown Cork & Seal Co., 282 F.3d 467, 471 (7" Cir. 2002).

Under Local Rule 56.1, a party moving for summary judgment must file a statement of
material facts consisting of “short numbered paragraphs,” pointing to record materials supporting
the motion. Local Rule 56.1(a)(3). In response, a party opposing a motion must file “a concise
response to the movant’s statement that shall contain: (A) a response to each numbered
paragraph in the moving party’s statement, including, in the case of any disagreement, specific
references to the affidavits, parts of the record, and other supporting materials relied upon. . .”
Local Rule 56.1(b)(3)(A). Further, “[aJll material facts set forth in the statement required of the
moving party will be deemed to be admitted unless controverted by the statement of the opposing
party.” Local Rule 56.1(b)(3)(B).

FACTUAL BACKGROUND

Defendants are alter ego entities engaged in the business of construction and

landscaping.' In 1996, Defendants executed the Heavy and Highway and Underground

Agreement, the Illinois Building Agreement, and the Illinois and Indiana Landscape Contractors

' Defendants take issue with the description “alter ego entities,” but do not dispute it for
the purposes of this action.