United States Court of Appeals

For the Eighth Circuit

___________________________

No. 11-3746

___________________________

Greater St. Louis Construction Laborers Welfare Fund, an employee benefit plan;

Brandon Flinn; Raymond Linehan; Pasquale Lopiccolo; Gary Elliott; David

Gillick; James Moll; Tom Daniels; Jeff Schmidt; Adam Knoebel; Jay

Schultehenrich; Charles Bean; Norman Merlo, Trustees of the Greater St. Louis

Construction Laborers Welfare Fund; Construction Laborers Pension Trust of

Greater St. Louis, an employee benefit plan; Joseph Beetz; Richard McLaughlin;

Jeffrey O’Connell; Don Willey; Gary Elliott; William Luth; Donald Grant; Joseph

Leritz; Robert Fritz; Jay Schultehenrich, Trustees of the Construction Laborers

Pension Trust of Greater St. Louis; St. Louis Vacation Fund - Vacation Plan, an

employee benefit plan; Gary Elliott; Brandon Flinn; Jay Schultehenrich; Norman

Merlo; William Luth, Trustees of the St. Louis Vacation Fund - Vacation Plan;

AGC - Eastern Missouri Laborers Joint Training Fund, an employee benefit plan;

Larry Bloomer; Don Willey; Perri Pryor; Gary Elliott; Richard McGuire; Brandon

Flinn; John B. Morgan; Phil Hocher; Robert J. Wesolich; Francis R. Wojehowski;

Cliff Land; John J. Smith, Sr., Trustees of the AGC-Eastern Missouri Laborers’

Joint Training Fund; Local Union Nos. 42-53-110 Laborers International Union of

North America AFL-CIO, labor organizations

lllllllllllllllllllll Plaintiffs - Appellees

v.

Park-Mark, Inc., a Missouri corporation

lllllllllllllllllllll Defendant - Appellant

____________

 Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

____________
 Submitted: September 19, 2012

 Filed: November 23, 2012

____________

Before BYE, GRUENDER, and SHEPHERD, Circuit Judges.

____________

SHEPHERD, Circuit Judge.

The Greater St. Louis Construction Laborers Welfare Fund along with several

other employee benefit funds and their trustees (collectively, “the Funds”), brought

this action to recover delinquent paymentsfrom Park-Mark, Inc. under the Employee

Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001-1461. Park-Mark

contends that it should not be liable for these delinquent payments because it

mistakenly made significant overpayments that require a set-off and a refund. The

district court granted summary judgment in favor of the Funds. We affirm.

1

I.

Park-Mark is a Missouri corporation that paints stripes on parking lots and

roads in Missouri and Illinois. In October 2001, Park-Mark agreed to be bound by

a collective-bargaining agreement (“CBA”) with the Eastern Missouri Laborers’

District Council and all subsequent CBAs. The CBA required Park-Mark to make

monthly contributions based on the hours worked by covered employees to the

Greater St. Louis Construction Laborers Welfare Funds, the Construction Laborers

Pension Trust of Greater St. Louis, the St. Louis Vacation Fund, and the Eastern

Missouri Joint Training Fund. The Funds are employee welfare benefit plans

organized pursuant to ERISA that provide health insurance coverage and retirement

benefits.

The Honorable Stephen N. Limbaugh, Jr., United States DistrictJudge for the

1

Eastern District of Missouri. 

-2-
Park-Mark and the Funds have been involved in litigation for several years

relating to separate disputes. In February 2010, counsel for the Funds notified ParkMark that an internal audit revealed that Park-Mark had made overpayments to the

Funds during the period of April 1, 2004, through September 30, 2009. Then, in

November 2010, the Funds’ accounting firm determined that the overpayments

totaled $548,257.39. Park-Mark had made payments to the Funds for hours worked

by its employees that were not performed in the jurisdiction of the CBA. Park-Mark

stopped making payments to the Funds from October 2010 through December 2010

because the Funds did not provide credit for the overpayments.

As a result, the Funds brought this action for missing payments from

September 1, 2010, forward and untimely contributions made between October 2008

and August 2010, pursuant to 29 U.S.C. § 1132(g)(2). Park-Mark answered the

complaint, asserting as an affirmative defense that a set-off should be applied to any

damages awarded the Funds and that any excess be remitted to Park-Mark. ParkMark later amended its answer to include a counterclaim for restitution, specifically

seeking overpayments it had made to the Funds.

The Funds moved for summary judgment, and the district court granted their

motion. The district court recognized that a federal common-law cause of action

exists for overpayments mistakenly made under ERISA. Applying a variety of

equitable factors to Park-Mark’s set-off defense, the district court held the principles

of equity did not demand a refund, but the court did not address Park-Mark’s

counterclaim for restitution. Park-Mark then moved the district court to reconsider

its order granting summary judgment, arguing the court (1) disposed of Park-Mark’s

counterclaim for restitution without the parties raising the issue and (2) misapplied

the law with respect to Park-Mark’s set-off defense. After the Funds responded, the

district court denied the motion to reconsider, holding Park-Mark failed to file a

formal pleading constituting a counterclaim. Additionally, the district court reasoned

-3-
that even if Park-Mark had raised such a claim, it fully addressed the counterclaimfor

restitution by analyzing Park-Mark’s set-off defense. Park-Mark now appeals.

II.

Park-Mark raises two points on appeal. First, Park-Mark contends that the

district court erred by dismissing its counterclaim when the claim was not raised by

either party. Second, Park-Mark argues that the district court erred by holding that

equity did not favor a set-off or restitution. Considering each point in turn, we review

de novo the district court’s grant ofsummary judgment. See Hackett v. Standard Ins.

Co., 559 F.3d 825, 829 (8th Cir. 2009).

A.

First, Park-Mark contends the district court erred by dismissing its

counterclaim for restitution because the counterclaim was not properly before the

district court. A trial court’s determination that a claim isripe for summary judgment

is reviewed for an abuse of discretion. Crowell v. Campbell Soup Co., 264 F.3d 756,

760 (8th Cir. 2001). Generally, a court “does not abuse its discretion by granting

summary judgment on the record before it if the party opposing summary judgment

seeks neither a continuance nor further discovery.” Id.

In this case, the district court did not abuse its discretion. Park-Mark neither

2

requested a continuance, nor sought to have the discovery deadline extended. Indeed,

The district court incorrectly found in its motion for reconsideration that Park2

Mark failed to file any formal pleading which constituted a counterclaim. In fact,

Park-Mark filed an amended answer on April 6, 2012, that included a counterclaim

for restitution. Although the district court’s finding that Park-Mark had not filed a

counterclaimwasinaccurate, it does not affect the outcome of the case for the reasons

explained above.

-4-
the discovery deadline had passed when the district court granted summary judgment

in favor of the Funds. Additionally, Park-Mark’s affirmative defense sought a set-off

against any damages recovered by the Funds and also requested that overpayments

in excess of the amount owed to the Funds be remitted to Park-Mark. The legal and

factual analysis for the set-off defense and the counterclaim are the same; each

requires the court to determine if a return of overpayments is permitted and then if it

is equitable. The district court’s analysis of the set-off defense in its order granting

summary judgment would necessarilydispose of Park-Mark’s restitution claim. ParkMark does not refute this. Therefore, the issue was fully briefed and presented to the

district court because it involved the same issues asthe set-off defense which wasthe

focus of the district court’s order. As a result, the district court did not abuse its

discretion by holding that its initial order granting summary judgment disposed of

Park-Mark’s claim for restitution.

B.

Park-Mark argues on appeal that (1) the district court incorrectly dismissed

Park-Mark’s set-off defense and (2) if the district court had reached Park-Mark’s

restitution claim, it would have held Park-Mark was entitled to a refund. Because

each claim requires the same legal and factual analysis, we consider them together. 

We must first determine if Park-Mark was entitled to bring a federal common-law

cause of action for a mistaken payment, and if so, whether equity favors a repayment.

We review a district court’s grant of summary judgment de novo and we will

affirm the grant of summary judgement “if the movant showsthat there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). A party opposing summary judgment must do more than

allege that some factual dispute exists; it must present a genuine issue of material

fact. Quinn v. St. Louis Cnty., 653 F.3d 745, 751 (8th Cir. 2011). A nonmoving

party “must come forward with specific facts showing that there is a genuine issue for

-5-
trial.” Conseco Life Ins. Co. v. Williams, 620 F.3d 902, 910 (8th Cir. 2010) (internal

quotation marks omitted); see also Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1085

(8th Cir. 1999) (holding a party opposing summary judgment may not rest on

allegations or denials).

Park-Mark contends it made overpayments in the amount of $548,257.39,

based on a report prepared by the Funds’s accountants, and the Funds conceded that

overpayments were made for the purposes of the motion for summary judgment.

Under ERISA, contributions made by a mistake of law or fact may be returned

“within 6 months after the plan administrator determines that the contribution was

made by such a mistake.” 29 U.S.C § 1103(c)(2)(A)(ii). This Court has joined other

circuits by holding that “an employer has a federal common law action for restitution

of mistakenly made payments to an ERISA plan.” Young Am., Inc. v. Union Cent.

Life Ins. Co., 101 F.3d 546, 548 (8th Cir. 1996).

 Park-Mark properly asserted the first prerequisite in asserting a federal

common-law claim for restitution by alleging it made a mistake of law or fact in

contributing to the Funds or, at the very least, sufficiently alleged a material dispute

existed. However, the Funds contend that Park-Mark has not sufficiently supported

these allegations with facts to demonstrate that the overpayments were made by a

mistake of fact or law. Michael Solomon, Park-Mark’s president, stated in an

affidavit that the company made the overpayments to the Funds based on the

mistaken belief that it was required to make contributions for all hours worked under

the CBA, including for the hours worked out of the CBA’s jurisdiction. The

Administrative Manager of one of the Funds, Bernard Difani, stated in his second

affidavit that the Funds’ accountants concluded that Park-Mark had made payments

for hours worked outside the jurisdiction of the CBA, and for other work for which

the CBA did not require contributions. Based on the affidavits of Solomon and

Difani, evidence exists that Park-Mark made overpayments under an erroneous legal

or factual understanding.

-6-
Even though overpayments were made, a refund is not automatic. Rather,

Park-Mark must demonstrate that restitution is equitable. This Court in Young

America held that restitution will be granted if the remedy is “equitable under the

circumstances,” referencing factors developed by the SeventhCircuit. Id. (citing UIU

Severance Pay Trust Fund v. Local Union No. 18-U, 998 F.2d 509, 513 (7th Cir.

1993)). In UIU Severance Fund, the court listed the following non-exclusive factors

for analyzing if restitution is equitable:

(1) are unauthorized contributions the sort of mistaken payments that

equity demands be refunded? (2) has the Union delayed bringing this

action for so long that laches, or some other equitable defense, bars

recovery? (3) in the same vein, has the Union, by continuing the

payments for years without apparent question, somehow ratified past

payments? and (4) since the Fund has agreed that it is not entitled to

keep the disputed amount in any event, can the Union demonstrate that

the party from whom it seeks payment would be unjustly enriched if

recovery were denied?

UIU Severance Fund, 998 F.2d at 513 (internal footnote omitted). Also, a fund’s

policies cannot be arbitrary and capricious, including the decision not to refund

mistakenly made payments. See Young Am., 101 F.3d at 549.

3

Park-Mark contends the district court misapplied the law, arguing that the

3

standard applied to ERISA claims in other courts supports a refund. See, e.g.,

Whitworth Bros. Storage Co. v. Cent. States Se. & Sw. Areas Pension Fund, 982 F.2d

1006, 1016 (6th Cir. 1993) (“A pension fund’s refusal to refund contributions paid

by mistake is arbitrary unless necessary to the financial soundness of the plan or

justified by some other compelling reason.”). Although a “‘sister circuit’s reasoned

decision deserves great weight and precedential value,’” United States v. Auginash,

266 F.3d 781, 784 (8th Cir. 2001), we decline to expand our holding in Young

America outside of the framework articulated in that case.

-7-
Applying these equitable factors to this case, we first consider if the

overpayments are the sort of mistaken payments that equity demands refunded. 

Restitution is inequitable where a payor “obtained a benefit that he intends to retain

from the payment” made, but now seeks to have the payment returned. Operating

Eng’rs Local 139 Health Benefit Fund v. Gustafson Const. Corp., 258 F.3d 645, 651

(7th Cir. 2001) (citing other cases holding the same). Overpayments may be “tied to

higher pension and welfare benefits for the defendant’s employees.” Id. Insurance

and pension benefits are contingent and deferred, respectively, so although there is

no immediate receipt, an employer may receive an immediate benefit because the

greater pension and welfare benefits reduce the employees’ demands for higher

wages. Id. at 651-52.

The Funds presented evidence that Park-Mark employees received insurancecoverage benefits and pension benefits reflecting the greater overpayments made by

Park-Mark. One of the Funds’ administrators, Bernard Difani, stated in his second

affidavit that all of Park-Mark’s CBA contributions, including overpayments,

benefitted Park-Mark’s employees through health insurance coverage and pension

contributions. Additionally, Difanistated that if the overpayments were returned, the

Funds would be required to deduct pension credits from Park-Mark’s employees that

were based on the overpayments.

After the Funds presented this evidence, Park-Mark did nothing to rehabilitate

its attacked assertions, nor did it offer additional evidence or seek further discovery.

Park-Mark now argues through unsupported hypotheticals that the payments it made

to the Funds did not necessarily constitute a benefit. Aside from one e-mail and the

4

On appeal and for the first time, Park-Mark argues specific sections of the

4

CBA raise an issue of material fact that not all overpayments were received as

benefits by its employees. Specifically, Park-Mark contends that section 5.06,

Training and Apprentice, and section 5.07, Site Advancement Fund, indicate that

Park-Mark employees may not have received benefits from the overpayments made

-8-
accountant’s report, the only other evidence that Park-Mark presented to the district

court wasthe affidavit of its president. Ultimately, Park-Mark presented insufficient

evidence to refute the Funds’ proof that refunding the overpayment would adversely

affect Park-Mark’s employees. See Conseco, 620 F.3d at 910 (holding summary

judgment proper where party failed to provide “some relevant evidence” to dispute

the facts presented).

The second factor to consider is if an equitable defense exists due to a delay in

bringing the claim. See UIU Severance Fund, 998 F.2d at 513. “Laches applies when

a claimant inexcusably delays in asserting its claimand thereby unduly prejudicesthe

party against whom the claim ultimately is asserted.” Hubbard Feeds, Inc. v. Animal

Feed Supplement, Inc., 182 F.3d 598, 602 (8th Cir. 1999). Not only have the parties

been involved in ongoing litigation for a period of years, but Park-Mark agrees that

it began making overpayments in 2004. Park-Mark argues that it did not learn of the

overpayments until February 2010 when the mistake was discovered by the Funds’

accountants. This factor still weighs in favor of the Funds, however, because the

CBA outlines when payments should be made by unambiguously defining the scope

of the CBA’s jurisdiction. Park-Mark’s delay in bringing the claim was inexcusable,

and has prejudiced the Funds who are placed in the position of attempting to unwind

six years of payments by trying to calculate whether Park-Mark’s employees truly

received benefits from the payments. See Weniger v. Success Mining Co., 227 F.

548, 557 (8th Cir. 1915) (“[I]gnorance which is the effect of inexcusable negligence

is no excuse for laches. . . .”). Therefore, we conclude this equitable factor favors the

Funds. 

to the Funds. Because we do not consider an argument first raised on appeal unless

a “manifest injustice” would result, we decline to address this argument. See

Henning v. Mainstreet Bank, 538 F.3d 975, 979 (8th Cir. 2008) (internal quotation

marks omitted).

-9-
Third, a refund may be inequitable if a company’s continued, unquestioned

payment over a period of years ratified the previous payments. See id. In UIU

Severance, a businessrepresentative for a union increased the contribution levels the

union was making to his benefit plan, and the union argued that these additional

payments were a “rogue act” taken without authorization. Id. at 511. Here, however,

Park-Mark authorized the overpayments for five years. Park-Mark argues that

although the payments were authorized, it overpaid the Funds based on a mistake of

law or fact. Because there is no dispute whether the overpayments were authorized

by Park-Mark, we do not consider if this equitable factor favors Park-Mark or the

Funds.5

Fourth, equity may favor a repayment if the Funds were unjustly enriched by

Park-Mark. See id. As discussed above, no evidence was presented by Park-Mark

refuting the Funds’ evidence that they were not unjustly enriched. Equity does not

favor a refund where no unjust enrichment occurred. Cf. Dickey v. Royal Banks of

Mo., 111 F.3d 580, 583 (8th Cir. 1997) (“[A] court will force a defendant to disgorge

a windfall if it is equitable to do so.”). Therefore, this factor weighs in favor of the

Funds. 

Finally, Park-Mark contends that the Funds’ actions and, more specifically,

their decision to retain the overpayments are arbitrary and capricious. We disagree. 

Based on the evidence in the record, the Funds decided to retain the overpayments

after investigating the matter and determining that refunding the overpayments to

Park-Mark would negatively impact the pension credits Park-Mark’s employees had

accrued. On these facts, we do not find this conduct to be arbitrary and capricious. 

The factors articulated by UIU Severance are not a “complete catalog” of what

5

a court may consider, nor is any one factor controlling. See UIU Severance, 998 F.3d

at 513. Although we find that the issue of ratification favors neither party, we

ultimately hold that the three remaining equitable factors do not favor restitution.

-10-
Cf. Young Am., 101 F.3d at 549 (holding one-year limit on premiumrefunds arbitrary

and capricious). 

Based on the above analysis, equity does not favor a refund on these facts. We

conclude the district court properly granted summary judgment in favor of the Funds.

III.

For these reasons, we affirm the district court. 

______________________________

-11-