facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). A genuine
issue of material fact exists when “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 (1986). The court must consider the record as a whole in a light most
favorable to the non-moving party and draw all reasonable inferences in favor of the
non-moving party. Id. at 255; Bay v. Cassens Transport Corp., 212 F.3d 969, 972 (7th
Cir. 2000). With these considerations in mind, we now turn to the present motion.
DISCUSSION

Plaintiffs argue that, because the Funds were never notified of Stelly’s
bankruptcy, his ERISA obligations to the Funds were never discharged. Among the
duties of a debtor in bankruptcy, the debtor is required to “file a list of creditors,” as
well as schedules of assets, liabilities, and other indications of its financial affairs. 11
U.S.C. §521(1). Failure to list creditors and debts as proscribed by 11 U.S.C. § 521(1)
can result in those debts not being included in the bankruptcy’s discharge. 11 U.S.C.
§ 523(a)(3)(A). In fact, “a discharge in bankruptcy does not discharge any debt not
listed in the debtor’s [Section 521(1)] schedule of debts unless the creditor had ‘notice
or actual knowledge’ of the bankruptcy proceeding in time to make a timely filing in
that proceeding.” Inre Barnes, 969 F.2d 526, 528 (7th Cir. 1992) (quoting 11 U.S.C.

§ 523(a)(3)(A)). In making this determination, “the debtor bears the burden of proving

-4.


no claims against Stelly, because any ERISA obligations to Funds were discharged in
Stelly’s bankruptcy. Plaintiffs now move for partial summary judgment that as a
matter of law, Stelly’s debts to the Funds were not discharged by its bankruptcy

aa
because Stelly never notified or disclosed th

the Funds as creditors of its estate.'

(ibs
LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, reveals that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c). On summary judgment the moving party must identify “those portions
of ‘the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting
specific evidence on a particular issue or by pointing out “an absence of evidence to
support the nonmoving party’s case.” Id. at 325. Once the movant has met this

burden, the non-moving party cannot simply rest on the allegations in the pleadings,

but, “by affidavits or as otherwise provided for in [Rule 56), must set forth specific

' This motion was originally filed as a Motion to Strike Paragraph Nine of the
Answer but was converted into a motion for partial summary judgment pursuant to this
court’s minute order dated December 12, 2002.

3.


that the complaining creditor obtained notice or actual knowledge of the bankruptcy

in time to protect its rights.” American Standard Ins, Co. of Wisconsin v. Bakehorn,
147 B.R. 480, 482 (N.D. Ind. 1992); See also Gagan v. American Cablevision, Inc., 77
F.3d 951, 968 (7th Cir. 1996) (debtor carries burden of demonstrating creditor’s notice
or knowledge of bankruptcy proceeding).

The Funds were not listed as creditors on Stelly’s trustee’s Final Report of
Administration of the Estate. Plaintiffs assert that they had no notice or knowledge of
Stelly’s bankruptcy until after this litigation commenced. The record is devoid of any
indication that the Funds were ever notified or knew of Stelly’s bankruptcy prior to the
closing of his bankruptcy estate.” For these reasons, we find that Stelly failed to meet
his burden of proving that the Funds were notified or knew of his 2000 bankruptcy.
We therefore hold that as a matter of law, pursuant to 11 U.S.C. § 523(a)(3)(A),
Stelly’s debts to the Funds were not discharged as a result of his earlier bankruptcy

filing.

2 Stelly has submitted neither evidence nor argument in opposition to Plaintiffs’
motion.

-5-


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
. or Magistrate Judge Charles P. Kocoras than Assigned Judge
CASE NUMBER 03 C 7133 DATE 12/23/2003
CASE Dugan et al vs. Stelly
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.}
DOCKET ENTRY:
q@) im) Filed motion of [ use listing in “Motion” box above.)
(2) Oo Brief in support of motion due
(3) Oo Answer brief to motion due. . Reply to answer brief due.
(4) im] Ruling/Hearing on set for at
(5) a Status hearing held and continued to 1/20/2004 at 9:30 A.M..
(6) o Pretrial conference[held/continued to} [set for/re-set for) on set for at -
(Cp) o Trial[set for/re-set for] on at
(8) Q (Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OUFRCP4(m) CO) Local Rule 41.1 OO FRCP41(a)(1) O FRCP41(a)(2).
(10) so [Other docket entry] ENTER MEMORANDUM OPINION: Plaintiff's motion (Doc 3-1) for
partial summary judgment is granted.

dg) ff (For further detail see order attached to the original minute order.]

No notices required, advised in open court, “Document

. . Number...

No notices required. umber of tise ons en

Notices mailed by judge’s staff, :

Notified counsel by telephone, dEC, 2 42003
J | Docketing to mail notices. aN {

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Copy tejudee/magistrate judge. Wu319
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CONCLUSION

Based on the foregoing analysis, Plaintiff s motion for partial summary judgment

is granted.

Charles P. Kocoras
Chief Judge
United States District Court

Dated: _ BEC 23 2003


UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

WILLIAM E. DUGAN, DAVID SNELTEN, STEVEN M.
CISCO, JOHN E. KENNY, JR., JOSEPH P. WARD,

RAYMOND C. CONNERS, MAMON POWERS, JR., DAVID

ANDERSKOW, GLEN WEEKS, JAMES M. SWEENEY as
Trustee, MIDWEST OPERATING ENGINEERS WELFARE
FUND, LAVERNE S. BROWN, ANGELO A. DIPAOLO,
JAMES MILLER, MICHAEL BERNARDI, MIDWEST
OPERATING ENGINEERS PENSION TRUST FUND,
ROBERT J. MADDEN, JAMES MCELROY, MONTY
HORNE, LOCAL 150 OPERATING ENGINEERS
APPRENTICESHIP FUND, and LOCAL 150 LU.O.E.
VACATION SAVINGS PLAN,

Plaintiffs,
vs.

WILL STEELY, individually and d/b/a STELCO COOLING
TOWER CO.,

Defendant.

MEMORANDUM OPINION

CHARLES P. KOCORAS, Chief District Judge:

NS TS SS SSS SSO ON

03 C 7133

This matter comes before the court on Plaintiffs’ unopposed motion for partial

summary judgment. For the reasons set forth below, the motion is granted.

lp


BACKGROUND

Plaintiffs are trustees and administrators of various employee welfare benefit
funds (the “Funds”). Defendant Will Stelly (“Stelly”) is the owner of a company
whose employees were beneficiaries of the Funds. Plaintiffs allege Stelly failed to
make fringe benefit contributions to the Funds as required by the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132 et seg. On October 9,
2003, Plaintiffs filed the present action, seeking Stelly to fulfill various obligations
under ERISA, including making delinquent payments to the Funds.

Unknown to Plaintiffs, on October 20, 2000, Stelly filed for Chapter 7
bankruptcy protection in the United States Bankruptcy Court for the Middle District
of Louisiana. On February 20, 2001, Stelly was discharged from his debts and his
bankruptcy estate was closed. However, the final report prepared by Stelly’s
bankruptcy trustee, which outlined how Stelly’s estate would be distributed to his
creditors, did not include the Funds among the listed creditors. According to Plaintiffs,
the reason why the Funds were not included among the discharged creditors is because
the Funds were never notified of Stelly’s bankruptcy. As such Plaintiffs claim that
Stelly’s obligations to the Funds were never discharged.

The subject of the present motion concerns Stelly’s Answer to Plaintiffs

Complaint (the “Answer”). Paragraph Nine of the Answer asserts that Plaintiffs have

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