UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN FLYNN, et al.,

Plaintiffs,

v. Civil Action No. 03-1718 (AK) DICK CORPORATION,

Defendant.

MEMORANDUM OPINION

Pending before the Court are Defendant Dick Corporation’s Motion for Reconsideration

and for Leave to Supplement the Record [73], Plaintiff Fund’s Opposition [77], and Defendant

Dick Corporation’s Reply [79]. Upon consideration of the pleadings, the record, and the relevant

circumstances of the case, the Court will grant Defendant’s motion.

I. Background

This case involves Plaintiffs’ claim that Defendant Dick Corporation breached a

Collective Bargaining Agreement (“CBA”) that was in effect at its Florida job sites by employing

non-union subcontractors.1 (Mem. Op. [64] at 2.) On June 16, 2008, the Court found “that there

is no genuine issue of material fact as to the existence of a CBA in effect at Dick Corporation’s

Florida job sites such that the Fund is entitled to summary judgment.” (Id. 7.) Because Dick

Corporation did not dispute that it breached the CBA by employing non-union subcontractors,

1 For a more detailed recitation of the lengthy factual and procedural history of this case, see this Court’s June 16, 2008 Memorandum Opinion.

1 the Court then calculated the damages that Dick Corporation owed to Plaintiffs on account of its

breach. (Id.)

Plaintiffs sought $1,893,737.71, representing $727,345.78 in delinquent contributions,

$577,983.88 in interest, $577,983.88 in additional interest, $10,424.17 in expenses, and

attorneys’ fees in an amount to be determined later pursuant to Section 502(g)(2) of the

Employee Retirement Income Security Act of 1974 (“ERISA”).2 (Id.) To establish the amount

of contributions that Plaintiffs would have received absent Dick Corporation’s breach of the

CBA3, Plaintiffs submitted a declaration from Philip Vivirito (“Vivirito Decl.”), an independent

auditor who reviewed Dick Corporation’s books and records. (Id. 8.) Mr. Vivirito examined the

payroll records of Dick Corporations’s subcontractors “to determine which employees of Dick

Corporation and its subcontractors were performing [ ] work” covered by the CBA.” (3d Vivirito

Decl. [59-5] ¶ 4.) The payroll records allowed Mr. Vivirito to determine which employees were

2 Section 502(g)(2) provides:

In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title [requiring contributions under the terms of a CBA] in which a judgment in favor of the plan is awarded, the court shall award the plan -- (A) the unpaid contributions, (B) interest on the unpaid contributions; (C) an amount equal to the greater of -- (i) interest on the unpaid contributions, or (ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph (A), (D) reasonable attorney's fees and costs of the action, to be paid by the defendant, and (E) such other legal or equitable relief as the court deems appropriate.

(g)(2).

3 The Court of Appeals held that “[t]he Fund is entitled to damages resulting from the breach in the form of benefit contributions ‘in a sum equal to that which they would have received if the agreement between the defendant and the union had been fully performed by all parties.” Flynn, 481 F.3d at 832-33 (quoting Trs. of the Teamsters Constr. Workers Local 13, Health & Welfare Trust Fund for Colo. v. Hawg N Action, Inc.,

(10th Cir. 1981).

2 performing covered work because they “specifically indicated the type of work each employee

was performing by stating, next to each employees name, ‘bricklayer,’ ‘laborer,’ etc.” (Id.) For

one of Dick Corporation’s subcontractors, Capform, Inc. (“Capform”), Dick Corporation failed

to provide Mr. Vivirito with certified payroll records, and accordingly Mr. Vivirito “did not have

information indicating the names of the employees who performed the work or the number of

hours that each employee worked in each of the various months covered by the audit.” (Id. ¶ 7.)

Because Mr. Vivirito “only had the total number of man hours attributable to Capform, Inc.’s

subcontractors in Florida,” Mr. Vivirito “included these hours in calculating the damages owed

by Dick Corporation by allocating them evenly to each month covered by the audit.” (Id.)

Mr. Vivirito’s “audit revealed that Dick Corp.’s subcontractors failed to report and remit

contributions for a total of 155,062 hours paid to its employees for bargaining unit work

performed under the Florida agreement.” (Vivirito Decl. [61-4] ¶ 7.) Using the contribution

rates set forth in the Blanco Declaration, Mr. Vivirito determined that Dick Corporation owed

delinquent contributions in the amount of $727,345.78. (Id. ¶¶ 8-9.) Mr. Vivirito also calculated

the amount of interest and additional interest that the Fund is entitled to recover under ERISA.

In accordance with the Collection Procedures of the Central Collections Unit of the Bricklayer

and Allied Craftworkers (“Collection Procedures”), Mr. Vivirito assessed interest on the

delinquent contribution at a rate of fifteen per cent per annum and determined that the total

interest due was $577,983.88. (Id. ¶ 10.) Mr. Vivirito also assessed additional interest in

accordance with the Collection Procedures at a rate of fifteen per cent per annum and determined

that Dick Corporation owed an additional $577,983.88 in interest. (Id. ¶ 11.) Based on these

calculations, Mr. Vivirito concluded that Dick Corporation owed a total of $1,155,967.76 in

3 interest and additional interest. (Id. ¶ 13.)

Dick Corporation did not challenge Plaintiffs’ claim for attorneys’ fees4 and costs or their

entitlement to, or Mr. Vivirito’s calculation of, interest and additional interest. (Mem. Op. [64]

at 9.) Dick Corporation did, however, challenge Plaintiffs’ calculation of delinquent

contributions and argued that there were “significant disputed material facts regarding the

quantum of contributions” such that a grant of summary judgment in favor of Plaintiffs on the

issue of damages would be inappropriate. (Id.) Specifically, Dick Corporation asserted that

there were disputes about “how much of the work subcontracted by Dick Corporation was

covered by the Florida CBA’s trade jurisdiction such that this subcontracting violated the Florida

CBA.” (Def.’s Br. [59] at 23.) In support of this contention, Dick Corporation submitted

declarations that suggested that Mr. Vivirito improperly included work performed by employees

of three subcontractors - ArtCrete & Restorations, Inc. (“ArtCrete”), Johnston & Simmons

Concrete Placing and Finishing, Inc. (“Johnston”), and Capform, when computing the delinquent

contributions owed to Plaintiffs. (Mem. Op. at 9.)

As to the work performed by ArtCrete, Dick Corporation submitted a declaration from

Wilbert E. Fisher (“Fisher Decl.”), Dick Corporation’s General Superintendent on the Miami

Federal Courthouse project. (Fisher Decl. [59-5] ¶ 1.) Mr. Fisher stated that “[e]mployees who

perform the sort of concrete finishing work performed by ArtCrete & Restorations, Inc. on this

project are represented in this geographic area by Operative Plasterers and Cement Masons

International Union, rather than by the Bricklayers and Allied Craftworkers (“BAC”). (Id. ¶ 4.)

4 The parties separately briefed the issue of attorneys’ fees. (See Plaintiffs’ Mot. for Attorney’s Fees [70], Defendant’s Opp’n [76], and Plaintiffs’ Reply [78]. The Court will address that issue in a separate Memorandum Order and Opinion.

4 As to the work performed by Capform’s subcontractors on the Miami Federal Courthouse

project, Mr. Fisher stated that employees who perform the rebar placement, concrete finishing,

and concrete placement work performed by Capform’s subcontractors are represented by unions

other than the BAC. (Id. ¶¶ 5-7.) Finally, as to the work performed by Johnston, Dick

Corporation submitted a declaration from Shelby J. Gardner (“Gardner Decl.”), Dick

Corporation’s Project Manager on the Fort Myers, Florida Midfield Terminal Expansion Project.

(Gardner Decl. ¶ 1.) Mr. Gardner stated that the work performed by Johnston on this project was

limited to the placing and finishing of concrete slabs and related work and that employees who

perform this type of work are represented by unions other than the BAC. (Id. ¶¶ 2, 4-5.)

Applying the burden-shifting framework set forth in Laborers’ Pension Fund v. RES

Environmental Services, Inc.,

(7th Cir. 2004), the Court found that the “generalized

and conclusory allegations” in the Fisher and Gardner Declarations were insufficient to challenge

Mr. Vivirito’s calculation of delinquent contributions. (Mem. Op. [64] at 10-11.) Accordingly,

the Court granted summary judgment for Plaintiffs on the issue of damages and ordered Dick

Corporation to pay the full $1,893,737.71 that Plaintiffs sought. (Id. 11.) On June 30, 2008,

Dick Corporation moved this Court to “alter and/or amend its June 16, 2008 judgment against

Dick Corporation to deny Plaintiffs’ motion for summary judgment with respect to the damages

they seek, and order a damages trial.” (Def.’s Mem. Supp. Mot. [67] at 1.) Dick Corporation

argued that by applying Laborers’ Pension Fund and rejecting the Fisher and Gardner

Declarations, “the Court misapplied the law and misconstrued the record evidence in finding that

Dick Corporation did not raise a genuine dispute of material fact regarding the contributions to

which Plaintiffs are entitled.” (Id.) Dick Corporation further argued that a damages trial was

5 necessary to resolve the $1,314,175.80 factual dispute created by the Fisher and Gardner

Declarations. (Id.)

This Court reviewed the relevant legal standards and concluded that while it was correct

in holding that Dick Corporation failed to demonstrate a genuine issue of material fact as to the

calculation of damages for work performed by Capform’s subcontractors, the Court’s application

of evidentiary burden under Laborers’ Pension Fund ArtCrete and Johnson was inappropriate in

light of the fact that there was no deficiency in payroll or other company records. (Mem. Op.

[71] at 9.) Without the heightened evidentiary burden, ArtCrete and Johnston needed only to

point to specific facts in the record to create a genuine issue of material fact for trial, and the

Court found that the Fisher and Gardner Declaration were sufficient in so doing. (Id.) As a

result, the Court ordered a damages trail on the issue of the amount of damages, if any, that Dick

Corporation must pay Plaintiffs for covered work performed by the two subcontractors. (Id.) On

the claims concerning Capform, however, the Court reasoned that Dick Corporation’s failure to

provide Mr. Vivitrio with payroll records from Capform prevented him from accurately

determining the amount and type of work preformed under Laborers Pension Fund. (Id. at 8.) In

light of such a deficiency in records, the Court concluded that the burden fell on Dick

Corporation to introduce specific factual assertions to dispute Mr. Vivirito’s calculations. (Id.)

Because, as the Court found in its earlier Memorandum Opinion, the Fisher declaration, which

was offered by Dick Corporation as creating a genuine issue of material fact work performed by

Capform’s subcontractors, contained the precise types of “generalized and conclusory

allegations” that were insufficient to prevent summary judgment in Laborers’ Pension Fund, the

Court determined that it should not alter its earlier ruling with respect to Capform. (Id. at 8-9.)

6 Dick Corporation subsequently moved for reconsideration and for leave to supplement

the record with the Capform subcontractors’ certified payrolls. (Def.’s Mot. for Reconsideration

[73].) Dick Corporation argues that the interests of justice warrant allowing it to address the

Capform subcontractor work at the damages trial because it was previously unaware of the

importance that would be attached to the Capform subcontractor payrolls. (Id. at 10-11.) In

particular, Dick Corporation contends that it was not until Plaintiffs’ Opposition to Dick

Corporation’s Motion to Alter or Amend Judgment that it learned for the first time that Plaintiffs

were alleging that Dick Corporation failed to maintain adequate records with respect to Capform

and that this should trigger the Laborers’ Pension Fund burden-shifting framework. (Id. at 14.)

Because it was not permitted to file a Reply due to an expedited briefing schedule, Dick

Corporation argues that it should now be afforded an opportunity to respond to such an argument

and provide the Capform subcontractor payrolls to avoid summary judgment on this portion of

the Union trade jurisdiction damages dispute. (Id. at 15.)

Plaintiffs respond that Dick Corporation has failed to provide any basis for the Court to

reconsider its damages judgment under Rule 54(b) and that it should not be permitted to

supplement the record with previously available evidence that was not provided despite ample

opportunities to do so. (Pls.’ Opp’n [77].) Plaintiffs assert that Dick Corporation failed to

produce the payroll records for Capform even though it had those records in its possession, was

specifically requested to produce them during discovery, and had numerous opportunities to

produce them throughout the course of the litigation. (Id. at 1-8.)

7 II. Legal Standards

Federal Rule of Civil Procedure 54(b) “governs reconsideration of or orders that do not

constitute final judgments in a case.” Cobell v. Norton,

(D.D.C. 2005).

Rule 54(b) provides that “any order or other decision, however designated, that adjudicates fewer

than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at

any time before the entry of judgment adjudicating all the claims and all the parties’ rights and

liabilities.” FED . R. CIV . P. 54(b). “Reconsiderations of interlocutory orders ‘are within the

discretion of the trial court’ and are ‘therefore subject to the complete power of the court

rendering them to afford such relief from them as justice requires.’” Keystone Tobacco Co., Inc.

v. U.S. Tobacco Co.,

(D.D.C. 2003). In determining whether

reconsideration is warranted, courts often consider whether the court has patently misunderstood

the parties or made an error of apprehension, whether the parties have proffered supplemental

evidence or new theories not previously before the court, or whether the decision was outside the

issues presented to the court by the parties. See Scott v. District of Columbia,

(D.D.C. 2007); Cobell,

(reviewing cases). Ultimately, however, “asking

what justice requires amounts to determining, within the Court’s discretion, whether

reconsideration is necessary under the relevant circumstances.” Cobell,

.

III. Discussion

After reviewing the pleadings, the record and the procedural history of the case, as well as

the exhibits proffered by Defendant Dick Corporation, the Court concludes that justice requires

that the damages trial to be held includes the issues related to Capform. The Court is now

8 confronted with what, in light of the Capform subcontractor payrolls proffered by Dick

Corporation in Exhibit 1 to its Motion for Reconsideration, is a clear and genuine issue of

material fact that is appropriate for trial rather than resolution on summary judgment. As noted

by Dick Corporation, the presence of the Capform subcontractor payrolls has created a nearly

indistinguishable factual record from the record regarding the other two subcontractors, Johnston

and ArtCrete, on which the Court ordered a damages trial. It would ultimately be arbitrary to

proceed with a damages trial on the issues related to those two subcontractors and not for the

issues related to Capform now that there is clear evidence of disputed material fact on the

Capform work before the Court.

The Court is of course mindful and troubled that the Capform payroll records were not

produced by Dick Corporation at any prior point during the course of this litigation. The

recitation in Plaintiff’s Opposition of the number of instances when Dick Corporation could and

should have produced the disputed payroll records demonstrates full well that Dick Corporation

did not diligently meet its discovery obligations with respect to the Capform payrolls. (See Pl.’s

Opp’n [77] at 3-8.) Dick Corporation asserts that it “was initially unable to locate this one set of

payrolls and provided Plaintiff with what it understood to be their total hours in recognition of

the absence of the actual payrolls.” (Def.’s Reply [79] at 4.) It further contends that “the

payrolls were not produced sooner thereafter because of the press of the close of discovery, long-

running settlement discussions and long-running briefing on the parties’ cross motions for

summary judgment, post-summary judgment motions, an appeal and remand, Plaintiffs raising no

initial objection to receiving the total Capform subcontractor work hours in lieu of the then

unavailable payrolls, and Dick Corporation’s lack of notice of the need to provide these payrolls

9 to avoid a higher evidentiary burden for establishing a dispute of material fact regarding

damages.” (Id.) It is apparent therefore that Dick Corporation relied on Plaintiff’s acceptance of

the total Capform subcontractor work hours in lieu of the payrolls without vociferous and

repeated objection and assumed that it could rely on the Fisher and Gardner declarations to

withstand summary judgment on damages. The payroll records, however, should have been

produced whenever they became available regardless of whether Plaintiff specifically re-

requested those records.

Despite this failure to timely produce the payroll records, the Court’s review of the whole

record and the circumstances and procedural history of the case leads it to conclude that damages

should be determined at an evidentiary hearing based on a complete record that includes the

long-missing payroll records. With the inclusion of the Capform payroll records, the Laborers’

Pension Fund burden-shifting framework no longer applies, and the Fisher and Gardner

Declarations become sufficient to create a genuine issue of material fact regarding Mr. Vivitrio’s

calculation of damages. (See Mem. Op. [71] at 9.) Given the long and circuitous procedural

history of the case, the Court is left with the view that justice requires that the remaining

damages issues related to all three subcontractors be determined after a full evidentiary hearing.

IV. Conclusion

This Court will therefore amend its July 21st, 2008 order granting in-part and denying-in-

part Dick Corporation’s Motion to Alter and Amend the Judgment. Dick Corporation shall pay

damages to Plaintiffs in the amount of $225,398.73 plus interest, total interest, and costs,

representing the delinquent contributions attributable to all subcontractors other than ArtCrete,

10 Johnston, and Capform.5 As to damages for work performed by ArtCrete, Johnston, and

Capform, the Court amends its earlier order and finds that Dick Corporation has demonstrated a

genuine issue of material fact. The parties shall appear before this Court for a trial to determine

the amount of damages that Dick Corporation must pay to Plaintiffs for work performed by these

three subcontractors.

An Order consistent with this Memorandum Opinion is filed contemporaneously

herewith.

Date: June 1st , 2009 /s/ ALAN KAY UNITED STATES MAGISTRATE JUDGE

5 The Court derives this figure from Attachment A to Plaintiff Funds’ Surreply in Support of its Position on Remand [63], which Plaintiffs submitted to provide the Court with an alternative calculation of damages should the Court have decided to grant partial summary judgment in favor of Plaintiffs. (Pl.’s Surreply 12 n.22, 15.) Attachment A is based on the figures provided by Mr. Vivirito in his audit report and excludes all work performed by ArtCrete, Johnston, and Capform. (Id.) Dick Corporation has not disputed the alternative damages calculation set forth in Attachment A.

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