UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHIGAN REGIONAL COUNCIL 

OF CARPENTERS EMPLOYEE

BENEFITS FUND, TRUSTEES OF, ET AL.,

Plaintiffs,

 Case No. 09-11272

v. Hon. Lawrence P. Zatkoff

PCSI PROCESSING, INC., ET AL.,

Defendants.

______________________________/

OPINION AND ORDER

AT A SESSION of said Court, held in the United States Courthouse, 

in the City of Port Huron, State of Michigan, on May 19, 2010

PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF

 UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter comes before the Court on Plaintiffs’ motion for partial summary judgment [dkt

19]. Defendants submitted a timely response to Plaintiffs’ motion, but Plaintiffs did not reply. The

Court finds that the facts and legal arguments are adequately presented in the parties’ papers such

that the decision process would not be significantly aided by oral argument. Therefore, pursuant to

E.D. Mich. LR 7.1(e)(2), it is hereby ORDERED that the motion be resolved on the briefs submitted.

For the reasons set forth below, Plaintiffs’ motion is DENIED.

II. BACKGROUND

This case involves Plaintiffs’ claims against Defendants for violations of the Employee

Retirement Income Security Act (“ERISA”) and the Michigan Building Trust Fund Act for

Defendants’ alleged failure to comply with their legal and contractual obligations to pay delinquent
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fringe benefit contributions. 

Plaintiffs are eleven jointly-trusted funds established under ERISA and the Labor

Management Relations Act and bring this action as third party beneficiaries of the collective

bargaining agreement between the Michigan Regional Council of Carpenters, a labor organization,

and Defendant PCSI Processing, Inc. (“PCSI”). Plaintiffs claim that PCSI breached its agreement

to make timely employee fringe benefit contributions for each employee covered by the collective

bargaining agreement. Plaintiffs also allege that PCSI’s owners and officers, including Cheryl

Haighley, Bruce Kadoura, and Dale Schmidt, are jointly and severally liable for Plaintiffs’ damages

because they breached their fiduciary duties under ERISA. Plaintiffs allege that PCSI’s failure to

make all required fringe benefit contributions due on behalf of each employee covered by the

collective bargaining agreement from April 2005 through December 2007 resulted in damages to

Plaintiffs in the amount of $15,117.77, as found due by a July 28, 2008, audit. 

Plaintiffs contend that partial summary judgment is appropriate because the July 28, 2008,

audit clearly demonstrates that PCSI failed to make the required fringe benefit contributions from

April 2005 through December 2007. Defendants argue that summary judgment is inappropriate

because (1) the conclusions reached in Plaintiffs’ audit are inaccurate, (2) genuine issues of material

fact exists as to the amount owed by PCSI, and (3) the Court may not consider Plaintiffs’ audit in

deciding the motion because it is unverified, unauthenticated, and constitutes inadmissible hearsay.

III. LEGAL STANDARD

Summary judgment is proper where “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, 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.” Fed. R. Civ. P.
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56(c); Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir. 2001). The moving party bears the initial

burden of demonstrating the absence of any genuine issue of material fact, and all inferences should

be made in favor of the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

To support its motion, the moving party may show “that there is an absence of evidence to

support the nonmoving party’s case.” Id. at 325. Although all inferences must be drawn in favor

of the nonmoving party, this Court bears no obligation to imagine favorable facts where the

nonmoving party has alleged none. The moving party must also set forth facts sufficient to establish

its case: “[T]he mere existence of a scintilla of evidence in support of the plaintiff’s position will

be insufficient [to defeat a motion for summary judgment]; there must be evidence on which the jury

could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

IV. ANALYSIS

“[H]earsay evidence cannot be considered on a motion for summary judgment.” Wiley v.

United States, 20 F.3d 222, 226 (6th Cir. 1994). Under Fed. R. Evid. 801(c), hearsay is “a

statement, other than one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” Here, Plaintiffs are offering the July 28, 2008,

audit—an out of court statement—to prove the truth of the matter asserted, i.e., that Plaintiffs are

owed $15,117.77 in fringe benefit contributions for the period of April 2005 through December

2007. Thus, the Court finds that the audit constitutes hearsay, and that the Court may not consider

it in deciding Plaintiffs’ motion. Since Plaintiffs offer no other evidence in support of their motion,

and Defendants vigorously dispute Plaintiffs’ calculations, the Court finds that genuine issues of

material fact exist as to the amount of fringe benefit contributions that are owed, if any, for the

period of April 2005 through December 2007. 
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V. CONCLUSION

For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiffs’ motion for partial

summary judgment [dkt 19] is DENIED.

IT IS SO ORDERED.

 

S/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

Dated: May 19, 2010

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Order was served upon the attorneys of record

by electronic or U.S. mail on May 19, 2010.

S/Marie E. Verlinde 

Case Manager

(810) 984-3290