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William K. Duffy, Kenneth Huber, Phillip Capobianco, John Duffy, Paul O'brien v. Beaver Site

January 6, 2011

WILLIAM K. DUFFY, KENNETH HUBER, PHILLIP CAPOBIANCO, JOHN DUFFY, PAUL O'BRIEN, MARC HERBST, JAMES HANEY, JR., JAMES PRATT, III, SCOTT ADRIAN AND ROBERT AHEARN, AS TRUSTEES OF THE LOCAL 138, 138A & 138B, INTERNATIONAL UNION OF OPERATING ENGINEERS WELFARE FUND, LEGAL FUND, APPRENTICESHIP TRAINING FUND, AND ANNUITY FUND, AND MICHAEL FANNING AS CEO OF THE CENTRAL PENSION FUND, PLAINTIFFS,
v.
BEAVER SITE, INC., DEFENDANT.



The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM & ORDER

Plaintiffs William K. Duffy, Kenneth Huber, Phillip Capobianco, John Duffy, Paul O'Brien, Marc Herbst, James Haney, Jr., James Pratt III, Scott Adrian, and Robert Ahearn, as Trustees of Local 138, 138A, and 138B's International Union of Operating Engineers Welfare Fund, Legal Fund, Apprenticeship Training Fund, and Annuity Fund, and Michael Fanning*fn1 as CEO of the Central Pension Fund (collectively the "Funds" or "Plaintiffs") commenced this action to recover from defendant Beaver Site, Inc. ("Defendant") contributions allegedly due under two successive collective bargaining agreements ("CBAs"), pursuant to Sections 1145 and 1132(a)(3) of the Employee Retirement Income Security Act ("ERISA") and Section 301 of the Labor Management Relations Act ("LMRA"). The Funds also seek an award of interest, liquidated damages, attorney's fees, audit fees, and costs. Presently before the Court is Plaintiffs' unopposed motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, Plaintiffs' motion is GRANTED.

BACKGROUND

The following facts, taken from Plaintiffs' Local Civil Rule 56.1 Statement ("Pls.' 56.1"), have not been disputed by Defendant and will, therefore, be deemed admitted.*fn2

The Trustees are trustees and fiduciaries of the Funds within the meaning of Sections 3(21) and 502 of ERISA, 29 U.S.C. §§ 1002(21) and 1132. (Pls.' 56.1 at ¶ 4.) The Funds are employee benefit welfare plans and/or employee benefit pension plans as defined by ERISA, 29 U.S.C. § 1002(1)-(2), and multi-employer plans as defined by ERISA, 29 U.S.C. §§ 1002(37)(A) and 1145. (Id. at ¶ 5.) They are also Taft Hartley plans within the meaning of 29 U.S.C. § 186 (c)(5). (Id. at ¶ 6.) The Funds are administered and have a principal place of business at 137 Gazza Boulevard, Farmingdale, New York. (Id. at ¶ 7.) Local 138, 138A and 138B, International Union of Operating Engineers (the "Union") is a labor organization as defined in Section 301 of the LMRA, 29 U.S.C. § 185, and represents employees engaged in an industry which affects interstate commerce as defined in 29 U.S.C. § 142. (Id. at ¶ 8.)

Defendant, a New York corporation, conducts business in New York, and maintains a place of business at 1200 Townline Road, Hauppauge, New York. (Id. at ¶ 10.) Defendant is an employer within the meaning of Section 2(2) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 152(2), and Sections 3(5) and 515 of ERISA, 29 U.S.C. §§ 1145 and 1002(5). (Id. at ¶ 11.) The Union and Defendant were parties to two successive CBAs.*fn3 (Id. at ¶ 12.)

Under Article IV, Section 2 of the CBAs, Defendant was required to pay into the Funds a certain sum of money for each hour, or part of an hour, worked by each employee performing covered work in the geographical area covered by the CBAs.*fn4 (Id. at ¶ 13.) Further,Defendant was required, pursuant to Article IV, Section 2-G of the CBAs, to maintain records with respect to each of its employees to determine the benefits due or which may become due to said employees. (Id. at ¶ 14.)

Article IV, Section 2-F of the CBAs, gives Plaintiffs the right to audit all books and records of Defendant "to [e]nsure compliance with the terms of the [CBA]." (Duffy Aff., Ex. A at 6, Ex. B at 7.) In early 2006, an audit was conducted by Berdon LLP ("Berdon"), the Funds' auditors, to determine if Defendant had properly paid fringe benefit contributions pursuant to the terms of the CBAs (the "2006 Audit"). (Pls.' 56.1 ¶¶ 16-17.) The 2006 Audit revealed that Defendant owed the Fund contributions in the principal amount of $358,701.63, exclusive of interest or any potential penalties, for the period between June 1, 2002 and June 30, 2005. (Duffy Aff. ¶ 6 & Pls.' 56.1 ¶ 17.)

Plaintiffs assert that Defendant is liable to the Funds and should pay the amount found to be "in discrepancy by the 2006 Audit," together with interest, liquidated damages, attorney's fees, court costs, and audit fees pursuant to ERISA, 29 U.S.C. § 1001, et seq, and Article IV, Section 2-E of the CBAs.*fn5 (See Pls.' Mem. at 1-2.) Defendant has not responded to Plaintiffs' Local Rule 56.1 Statement of Undisputed Material Facts or Plaintiffs' Motion for Summary Judgment. For the reasons stated below, Plaintiffs' motion is granted.

DISCUSSION

I. Applicable Law and Legal Standards

A. Summary Judgment Standard

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates both the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See Major League Baseball Props., Inc.v.Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008); Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009); Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir. 2007). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. See SCR Joint Venture, 559 F.3d at 137; Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).

To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Del. & Hudson Ry. Co. v. Cons. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted). "Rule 56(e)'s requirement that the affiant have personal knowledge and be competent to testify to the matters asserted in the affidavit also means ...


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