UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SERVICE EMPLOYEES INTERNATIONAL UNION NATIONAL INDUSTRY PENSION FUND, et al.,

Plaintiffs, Civil Action No. 17-cv-1676 (DLF) v.

PARKWAY HEALTHCARE, LLC,

Defendant.

MEMORANDUM OPINION

The Service Employees International Union National Industry Pension Fund (the Fund)

and its Trustees bring this action under the Employee Retirement Income Security Act of 1974

(ERISA), §§ 1132(a)(3), (d)(1), (g)(2), 1145, and the Labor Management Relations Act of 1947

(LMRA),

(a), to collect unpaid contributions, interest, liquidated damages, audit

testing fees, attorneys’ fees, and costs from defendant Parkway Healthcare, LLC. Before the

Court is the plaintiffs’ Motion for Summary Judgment, Dkt. 11, under Rule 56 of the Federal

Rules of Civil Procedure.

I. BACKGROUND

The parties dispute nearly every fact in this case. Compare Pls.’ Statement of Facts, Dkt.

11-2, with Def.’s Resp. to Pls.’ Statement of Facts, Dkt. 15-1. Thus, the Court must examine

each party’s submissions to decide whether any of these disputes are “genuine” and warrant a

trial. See Fed. R. Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

,

586–87 (1986). A. Contractual History

According to the plaintiffs, the Fund qualifies as an “employee pension benefit plan” and

a “multiemployer plan” under ERISA. See

(2)–(3), 1002(37)(A). Three legal

documents govern the Fund’s relationship with the defendant: a Collective Bargaining

Agreement requiring certain contributions, a Trust Agreement establishing the Fund, and a

Collection Policy adopted by the Trustees. See Smith Decl. ¶¶ 6–7, 9–10, Dkt. 11-3; see also

Pls.’ Mot. for Summ. J. Ex. 1, Dkt. 11-5 (Collective Bargaining Agreement); Pls.’ Mot. for

Summ. J. Ex. 2, Dkt. 11-6 (Trust Agreement); Pls.’ Mot. for Summ. J. Ex. 3, Dkt. 11-7

(Collection Policy).

Since April 1, 2010, the Collective Bargaining Agreement has required the defendant to

make contributions to the Fund on behalf of certain categories of employees, including certified

nursing assistants, dietary and housekeeping workers, and recreational aides. Smith Decl. ¶¶ 6–

7; see also Pls.’ Mot. Summ. J. Ex. 1. In the Collective Bargaining Agreement, the defendant

also “agree[d] to be bound by the provisions of the [Trust Agreement] establishing the Fund .

. . and by all resolutions and rules adopted by the Trustees pursuant to the powers delegated to

them by the Agreement, including collection policies.” Smith Decl. ¶ 9 (quoting Pls.’ Mot. for

Summ. J. Ex. 1, Art. 25.4). The Trustees adopted a Collection Policy that requires employers to

submit contributions each month along with a remittance report detailing the hours paid

(excluding overtime) for all contribution-eligible employees.

. If an employer fails to

submit contributions by the due date, the Collection Policy allows the Fund to collect interest on

the delinquent contributions at 10% per annum, or to collect liquidated damages equal to 20% of

the delinquent contributions, whichever is greater.

¶ 12–13 (citing Pls.’ Mot. for Summ. J.

Ex. 3 §§ 5.1, 5.2). If the Fund does not receive a remittance report for a given period and thus

cannot determine the contributions owed, it can estimate them using the contributions from the 2

most recent period and consider the employer delinquent for that amount. Id. ¶ 14; see also Pls.’

Mot. for Summ. J. Ex. 3 § 2. Further, the Collection Policy provides for the assessment of

attorneys’ fees and costs against a delinquent employer. Smith Decl. ¶ 15 (citing Pls.’ Mot. for

Summ. J. Ex. 3 § 5.3–5.4).

B. The Rehabilitation Plan

From 2009 to 2017, the Fund was determined to be in “critical status” under the Pension

Protection Act of 2006 (PPA),

Stat. 780 (codified as amended in scattered

sections of 26 and 29 U.S.C.),1 and the Fund notified participating employers of that

determination each year. Smith Decl. ¶ 17; Pls.’ Mot. for Summ. J. Ex. 4, Dkt. 11-8 (critical

status letters). Pursuant to the PPA, the Fund established a “Rehabilitation Plan” and notified

participating employers of that plan in 2009. Smith Decl. ¶ 18; Pls.’ Mot. for Summ. J. Ex. 5,

Dkt. 11-9 (letter to employers outlining Rehabilitation Plan). The Rehabilitation Plan required

participating employers to pay certain “surcharges” and “supplemental contributions” on top of

the “base contribution rate” normally applied to each dollar of contribution-eligible wages.

Smith Decl. ¶¶ 19, 22–25.

An initial 5% surcharge applied as of June 1, 2009, and that surcharge rose to 10% as of

January 1, 2010.

. Under the Rehabilitation Plan, this 10% surcharge remained effective

until replaced by a supplemental contribution schedule agreed to in a Collective Bargaining

Agreement.

When the defendant negotiated its Collective Bargaining Agreement in 2010, it

elected the “Preferred Schedule” of supplemental contributions, which when added to the 2009

and 2010 surcharges led to the following schedule:

1 Under federal pension law, a plan will generally be considered in “critical status” if its funding falls below certain statutory requirements. See generally

.

3

• 5% as of June 1, 2009

• 10% as of January 1, 2010

• 18.5% as of April 1, 2011

• 27.7% as of April 1, 2012

• 37.6% as of April 1, 2013

• 48.3% as of April 1, 2014

• 59.8% as of April 1, 2015

• 72.1% as of April 1, 2016

• 85.5% as of April 1, 2017

¶¶ 19–21 (citing Pls.’ Mot. for Summ. J. Ex. 5). The Rehabilitation Plan applied the relevant

surcharge or supplemental contribution rate to the defendant’s 2% base contribution rate, such

that the total contribution rate for 2010 would equal 2.2% (2% plus 10% surcharge, or .02 x 1.1),

the total contribution rate beginning April 2011 would equal 2.37% (2% plus 18.5%

supplemental contribution, or .02 x 1.185), and so forth.

¶¶ 22–23 (citing Pls.’ Mot. for

Summ. J. Ex. 1, Art. 25.3).

C. Delinquent Contributions

Based on these rates and the defendant’s own remittance reports, the Fund’s Contribution

Compliance Manager, Kisha Smith, found the defendant delinquent with respect to three

categories of employees, classified by “[s]ite number.”

, 26–27. To illustrate the precise

contributions due, she prepared detailed spreadsheets that list for each month: (1) the hours

reported by the defendant (that is, the self-reported total gross monthly earnings of all covered

employees); (2) the base contribution rate; (3) the base contributions due; (4) the supplemental

rate; (5) the supplemental contributions due; (6) the total contributions due; (7) the amount paid

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by the defendant; (8) the overpayment/underpayment, if any; (9) any applicable interest or

liquidated damages due;2 and (10) the total amount due. See

¶¶ 27–33; see also

Exs. A, B,

C (spreadsheets). These spreadsheets indicate that the defendant owes contributions, interest,

and/or liquidated damages totaling:

• $13,151.85 for Site 2362 (dietary and housekeeping employees)3

• $27,007.94 for Site 2814 (certified nurse assistants)

• $1,432.18 for Site 2824 (recreational employees)

See Smith Decl. ¶¶ 30–36; see also

Exs. A, B, C. These delinquent contributions are based

purely on the defendant’s self-reported wages.

¶¶ 28–29, 37.

D. Audit Amounts

Separately from these calculations, the Fund performed two random audits of the

defendant’s participation in the plan, in accordance with the Trust Agreement.

¶¶ 38–41.

Unlike the calculations described above—which take the defendant’s reported hours and wages

as a given—the audits were designed to determine whether the defendant accurately reported the

number of hours or wages to begin with.

. Thus, the delinquent contribution calculations

measured the outputs (the results of multiplying the reported wages by the applicable rates),

while the audits measured the inputs (the reported wages themselves).

The first audit, conducted in 2015, focused on the years 2009 and 2010 and revealed that

for Site 2362 the defendant owes $2,546.91 in unpaid contributions, $1,535.78 in interest

2 The interest and liquidated damages figures are broken down further, but the Court consolidates them here for simplicity. 3 Because the defendant failed to submit the required remittance reports for May and June of 2016, the Fund calculated the amount of delinquent contributions for those months using the hours reported for April 2016, in accordance with the Collection Policy. Smith Decl. ¶ 30; see also Pls.’ Mot. for Summ. J. Ex. 3, § 2.

5

(through October 15, 2015), $127.35 in liquidated damages, $80.98 in PPA supplemental

contributions, and $3,766.52 in audit testing fees, minus an overpayment of $1,207.98, for a total

of $6,842.30 due, with interest accruing at $.70 per day. Id. ¶¶ 41–42; see also Pls.’ Mot. for

Summ. J. Ex. 6, Dkt. 11-10 (audit paperwork).

The second audit, conducted in 2016 and focused on years 2013 and 2014, revealed that

for Site 2814 the defendant owes $7,777.94 in unpaid contributions, $3,223.32 in interest

(through August 20, 2016), $545.24 in liquidated damages, $2,690.48 in PPA supplemental

contributions, and $3,403.20 in audit testing fees, minus an overpayment of $1,041.78 and a

partial payment of $9,034.46, for a total of $7,563.94 due, with interest accruing at $2.99 per

day. Smith Decl. ¶¶ 43–44; see also Pls.’ Mot. for Summ. J. Ex. 7, Dkt. 11-11 (audit

paperwork). The same audit revealed that for Site 2824 the defendant owed $202.85 in unpaid

contributions, $81.88 in interest (through August 20, 2016), $50.00 in liquidated damages, and

$31.77 in PPA supplemental contributions, minus an overpayment of $114.53 and a partial

payment of $148.08, for a total of $103.89 due, with interest accruing at $.08 per day. Smith

Decl. ¶ 45; see also Pls.’ Mot. for Summ. J. Ex. 7.

E. The Parties’ Submissions

To support the obligations and calculations outlined above, the plaintiffs have submitted

a declaration from Contribution Compliance Manager Kisha Smith, who “maintain[s] the Fund’s

records, determine[s] whether participating employers have satisfied their obligations to make

timely contributions to the Fund, and assist[s] in efforts to collect delinquent contributions from

participating employers.” Smith Decl. ¶ 2. They have also submitted copies of the Collective

Bargaining Agreement, Trust Agreement, Collection Policy, Rehabilitation Plan, and 2015 and

2016 audits—each authenticated by Smith—and spreadsheets summarizing the Fund’s

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calculations in the manner described above. Pls.’ Mot. for Summ. J. Exs. 1–7; Smith Decl. Exs.

A, B, C.

The defendant for the most part responds by asserting insufficient information,

characterizing the plaintiffs’ proposed undisputed facts as “conclusions of law,” and claiming

that the referenced documents speak for themselves. See generally Def.’s Resp. to Pls.’

Statement of Facts. In terms of actual evidence, the defendant offers a declaration from its

counsel, David Jasinski, Dkt. 15-3, a copy of the Collective Bargaining Agreement, Dkt. 15-4,

and a copy of a settlement agreement between various healthcare centers and a union, Dkt. 15-5.

The Jasinski declaration asserts that the plaintiffs’ submissions fail to specify the eligibility

criteria applied by the Fund in calculating the contribution amounts owed. Jasinski Decl. ¶¶ 6–7.

It explains that the defendant “[a]ppl[ied] all of the eligibility and other criteria” each month and

then submitted remittance reports and contributions based on those amounts. Id. ¶¶ 13–14.

Because those amounts were based on the correct eligibility criteria, the affidavit concludes, the

delinquencies identified by the plaintiffs must have resulted from the Fund improperly including

(1) wages paid to employees who had not yet been employed for at least ninety days; and (2)

overtime pay—both of which are ineligible for contributions under the terms of the Collective

Bargaining Agreement. Id. ¶¶ 8–16. Finally, the affidavit asserts that the attached settlement

agreement—authenticated by Jasinski—bars recovery of any contribution amounts from

September 2002 to March 2010. Id. ¶¶ 17–18.

F. Procedural History

The plaintiffs filed this suit August 17, 2017, Dkt. 1, and the defendant answered on

September 29, 2017, Dkt. 5. On November 6, 2017, before any discovery, the plaintiffs moved

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for summary judgment.4 The plaintiffs bring count I to recover amounts owed pursuant to the

two audits, Compl. ¶¶ 20–29, count II to compel the defendant to submit missing reports from

May 2016 and June 2016, id. ¶¶ 30–37, and count III to recover delinquent contributions, id.

¶¶ 38–47. For relief, the plaintiffs seek (1) $14,511.13 for the audit amounts; (2) $41,591.975 for

the delinquent contributions; (3) attorneys’ fees and costs; and (4) a permanent injunction

requiring the defendant to remit reports and contributions to the Fund in a timely manner going

forward. Id. at 13–14. And they ask the Court to retain jurisdiction of the case pending

compliance with its orders. Id. at 14.

II. LEGAL STANDARD

A court grants summary judgment if the moving party “shows that 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); see also Anderson v. Liberty Lobby, Inc.,

, 247–48 (1986). A

“material” fact is one with potential to change the substantive outcome of the litigation. See

Liberty Lobby,

; Holcomb v. Powell,

(D.C. Cir. 2006). In

response to a motion for summary judgment, the nonmoving party “must do more than simply

show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co.,

. “[T]he nonmoving party must come forward with ‘specific facts showing

that there is a genuine issue for trial.’”

at 587 (quoting Fed. R. Civ. P. 56(e)) (emphasis

added in original). “Where the record taken as a whole could not lead a rational trier of fact to

4 This case was reassigned to the undersigned on December 5, 2017. 5 The complaint requests one penny more, but $41,591.97 reflects the amount requested in the plaintiffs’ proposed order and the sums listed in the Smith declaration. Compare Compl. at 13 ($41,591.98), with Pls.’ Proposed Order, Dkt. 11-4 ($41,591.97), and Smith Decl. ¶¶ 30–36, Exs. A, B, C (listing sums totaling $41,591.97).

8

find for the non-moving party, there is no genuine issue for trial.”

(internal quotation marks

omitted).

III. ANALYSIS

The defendant argues that summary judgment is premature, that the plaintiffs have failed

to provide a reasonable basis for determining damages, that any claims for contributions from

2009 to March 2010 are barred by a settlement agreement, and that the plaintiffs have not shown

irreparable harm sufficient to justify a permanent injunction. Def.’s Opp’n at 3–7, Dkt. 15. The

Court addresses each argument in turn.

A. Summary Judgment Is Not Premature

Although the defendant does not invoke Rule 56(d) by name, that rule allows a non-

movant to challenge summary judgment before discovery as premature, and the Court considers

the defendant’s objection to the timing of the plaintiffs’ motion under that standard.

Rule 56(d) allows the court to deny or defer considering a motion for summary judgment

if the “nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present

facts essential to justify its opposition.” Fed. R. Civ. Proc. 56(d). The D.C. Circuit has

interpreted Rule 56(d)—formerly Rule 56(f)6—to require an “affidavit” that “satisf[ies] three

criteria.” Convertino v. U.S. Dep’t of Justice,

(D.C. Cir. 2012). The affidavit

must (1) “outline the particular facts [the non-movant] intends to discover and describe why

those facts are necessary to the litigation”; (2) “explain why [the non-movant] could not produce

the facts in opposition to the motion for summary judgment”; and (3) “show the information is in

fact discoverable.”

at 99–100 (internal alterations and quotation marks omitted).

6 Although some of the D.C. Circuit’s decisions discuss Rule 56(f), Rule 56(d) “carrie[d] forward without substantial change the provisions of former subdivision (f).” Fed. R. Civ. P. 56 advisory committee’s note to 2010 amendment.

9

The Jasinki declaration submitted by the defendant does not meet any of those

requirements, let alone all three. Although it asserts—correctly—that “[n]o discovery has been

completed in this matter,” Jaskinski Decl. ¶ 2, it does not specify any facts the defendant intends

to discover, nor does it describe why those facts are necessary, see Serv. Emps. Int’l Union Nat’l

Indus. Pension Fund v. Castle Hill Health Care Providers, LLC,

(D.D.C.

2015) (rejecting Rule 56(d) request where affidavit from Jasinski did not “identify the types of

documents that Defendants would seek from Plaintiffs” or “identify any persons whom

Defendants would attempt to depose”). The affidavit characterizes the plaintiff’s submissions as

conclusory and incomplete, but it does not point to any additional information or documents that

might aid the defendant in responding to those submissions. See Jasinki Decl. ¶¶ 3–12; see also

Castle Hill Health Care Providers,

(rejecting Rule 56(d) request where

declaration “professed uncertainty and confusion” in response to “Plaintiff’s summary

spreadsheet” but failed to explain “what facts [the defendants] hope[d] to obtain in discovery that

would enable them to dispute Plaintiffs’ calculations”).

Further, the declaration offers no explanation for why the defendant has not been able to

produce certain materials, or that they would be discoverable. The Fund claims to have based its

delinquency calculations on the defendant’s self-reported hours, and its audit on the defendant’s

own documents. Smith Decl. ¶¶ 28–29, 38, 41, 43. Yet the Jasinski declaration does not explain

how information necessary to rebut the plaintiffs’ claims could be anywhere other than in the

defendant’s possession. See Castle Hill Health Care Providers,

(rejecting

Rule 56(d) request where “it [wa]s not at all clear from the Jasinski Declaration why Defendants

d[id] not already possess the records needed” and observing that the defendants already

“possess[ed] information regarding the monthly amounts due to the Pension Fund and the actual

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amounts paid” and that “the percentages used to calculate interest and liquidated, as reflected in

the [plaintiffs’] spreadsheet, [we]re set forth in the relevant agreements”).

Because the defendant does not “specify the types of documents [it] need[s] from

Plaintiffs to appropriately defend this case” and “ha[s] failed to explain what discovery [it]

seek[s] to obtain from Plaintiffs that is not duplicative of records already in [its] possession,”

(internal quotation marks omitted), the defendant has failed to meet the Convertino factors, and

summary judgment is not premature.

B. The Plaintiffs Provided a Reasonable Basis for Determining Damages

The plaintiffs describe the defendant as conceding liability on the merits but contesting

damages. Pls.’ Reply at 16–17, Dkt. 16. The difference between the merits and damages may in

this case be a mirage, however, because the sole question is whether the defendant fulfilled its

monetary obligations or not. That said, the Court agrees that the defendant has made no

argument that it is not bound by the terms of the Collective Bargaining Agreement, the

Rehabilitation Plan, or the Collection Plan and thus concedes its potential liability under those

agreements. The Court will therefore focus, as the defendant does, on the purported amounts

due.7

7 The plaintiffs initially also challenged the defendant’s failure to submit reports for the months of May 2016 and June 2016 and sought an order requiring the defendant to submit those reports and to pay contributions, interest, liquidated damages, and PPA supplemental contributions based on the amounts reported. Compl. at 10–11, 13–14. As Smith’s declaration explains, however, the Collection Plan already provides for missing reports by allowing the Plan to use the amounts from the most recent month—here, April 2016—to calculate the delinquency for the missing periods. Smith Decl. ¶ 14. The Fund has done so here and used the April amounts for May and June in its calculations. Id. ¶ 30. Thus, the Court will treat count II as incorporated into count III and the total damages figure requested.

11

1. Audit Amounts

Although the defendant generally contends that a “reasonable basis . . . does not exist” for

determining damages, Def.’s Opp’n at 3, it does not distinguish between the plaintiffs’ proposed

audit amounts and delinquent contributions—which involve different claims for distinct sums.

Despite this ambiguity, even a generous reading of the defendant’s opposition reveals that the

substance of the defendant’s objections focuses exclusively on delinquent contributions. See id.

at 4–5. Indeed, in the defendant’s chief attack on the plaintiffs’ proposed damages—that the

Fund incorrectly applied eligibility criteria—it specifically contrasts the delinquency calculations

and the audit amounts and concedes that the audits do specify how the Fund determines

eligibility. See id. at 5 (“Except for the few audit documents provided as Exhibits 6 and 7 to

Plaintiffs’ Motion for Summary Judgment, none of the documents provided by Plaintiffs indicate

how the Pension Fund determines whether or not a particular person has met this threshold.”

(citing Jasinski Decl. ¶ 9)). The defendant has therefore failed to mount any specific challenge to

the results of the Fund’s audits, dooming any opposition to the plaintiffs’ audit claims. See Md.

Elec. Indus. Health Fund v. MESCO, Inc., No. 12-cv-505,

, at *14 (D. Md. Feb.

28, 2014) (“Where a benefit fund has conducted an audit and no other barriers to liability or

damages exist, judgment is appropriate, absent some specific challenge to the audit’s findings.”);

Nat’l Elec. Benefit Fund v. Rabey Elec. Co., No. 11-cv-184,

, at *4 (D. Md.

Sept. 4, 2012) (“[C]ourts have held that judgment as a matter of law is appropriate where the

plan presents an audit demonstrating that contributions are owed and the employer fails to

identify specific errors in the audit or provide documentation to rebut the audit’s conclusions.”).

Because the defendants have not presented a material and genuine dispute concerning the

plaintiffs’ damages figure arising from its audits in 2015 and 2016, the Fund may collect the

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amounts due under those audits unless any recovery is barred by the settlement agreement, which

the Court addresses below.

2. Delinquent Contributions

As the plaintiffs point out, courts have previously awarded summary judgment for

delinquent contributions based on declarations and spreadsheets strikingly similar to those

offered here. See, e.g., Castle Hill Health Care Providers,

(finding

plaintiffs met their burden at summary judgment by offering declaration from Contribution

Compliance Manager that “summarize[d] the parties’ contractual obligations under the various

agreements,” “set[] forth the dates and amounts of [the defendant’s] delinquencies,” and included

“a spreadsheet showing, for each of the three sites, the ‘Total Due Per Month,’ the ‘Amount

Paid,’ and ‘Contributions Due,’” and “a monthly breakdown of the interest and liquidated

damages on late paid contributions”); Serv. Emps. Int’l Union Nat’l Indus. Pension Fund v.

Harborview Healthcare Ctr., Inc.,

, 18–20 (D.D.C. 2016) (granting summary

judgment based on Contribution Compliance Manager’s declaration and spreadsheets

summarizing amounts owed); Serv. Emps. Int’l Union Nat’l Indus. Pension Fund v. Bristol

Manor Healthcare Ctr., Inc.,

(D.D.C. 2016) (granting summary

judgment based on Contribution Compliance Manager’s declaration and spreadsheets and

finding the defendant’s “rebuttal evidence . . . wholly inadequate” because the defendant “ha[d]

not produced its own estimate for the appropriate amount of damages” or “produced a version a

of Plaintiffs’ spreadsheets that [the defendant] claim[ed] [wa]s accurate”). Despite this authority,

13

the defendant raises three challenges to the plaintiffs’ submissions—all based on the declaration

of its attorney, Jasinski.8

First, the defendant argues that the plaintiffs have failed to “provide a conclusive figure

or a defined methodology as to how the Pension Fund calculated the alleged amounts owed.”

Def.’s Opp’n at 4; Jasinski Dec. ¶ 3. But that argument has been flatly rejected by another judge

on this court in nearly identical circumstances. See Harborview Healthcare Ctr., Inc.,

(rejecting as not “well-founded” the argument that a Contribution Compliance

Manager’s “Declaration and attached spreadsheets [we]re inadequate support for plaintiffs’

damages calculation because they fail[ed] to ‘provide a conclusive figure or a defined

methodology as to how the Pension Fund calculated the alleged amounts owed’” (quoting the

defendant’s opposition)).

Second, the defendant faults the plaintiffs for failing to “provide any sort of specific

support documenting the gross, monthly payroll numbers used to calculate each month’s”

contributions and for failing to provide a “breakdown or explanation supporting the large

amounts of liquidated damages claimed.” Def.’s Opp’n at 4. As a result of these purported

failings, the defendant accuses the plaintiffs of “summarily stat[ing] the amounts that they

8 The Court notes that declarations from counsel must be confined to matters within the counsel’s personal knowledge and must avoid mingling alleged facts with argument. See, e.g., Kelley v. Eli Lilly & Co.,

(D.D.C. 2007) (“[A]ffidavits provided by attorneys not made on personal knowledge are not considered during the granting of summary judgment.”); Universal Film Exchanges, Inc. v. Walter Reade, Inc.,

(S.D.N.Y. 1965) (describing as an “inherently unsound practice” counsel’s “mingling in his affidavit alleged facts, comment, inference, argument and explanation”). Here, counsel asserts he is “fully familiar with the facts of this matter” but does not provide any foundation for that familiarity. Jasinski Decl. ¶ 1. And the facts asserted in Jasinski’s declaration overlap significantly with the legal arguments raised in the defendant’s opposition. In any event, the facts asserted in the declaration—even if fully credited—are insufficient to create a genuine, material dispute of fact, for the reasons described below.

14

believe they are owed.”

But as other judges on this court have pointed out, summarizing is

expressly authorized by Federal Rule of Evidence 1006. Harborview Healthcare Ctr., Inc.,

(finding spreadsheets from Contribution Compliance Manager qualified as

“admissible summaries of the voluminous underlying evidence which may be used to ‘prove the

content’ of the underlying documents” (quoting Fed. R. Evid. 1006)); Bristol Manor Healthcare

Ctr., Inc.,

(dismissing the defendant’s contention that the plaintiffs

“summarily stat[ed] the amounts they believe are owed” because “Rule 1006 allows Plaintiffs to

do so” (quoting the defendant’s opposition)). In Harborview Healthcare Center, the court

observed that the Contribution Compliance Manager’s declaration “include[d] both the amounts

that the Fund ha[d] calculated it [wa]s due from [the defendant] and a detailed explanation of

how those amounts were calculated,” and found that was more than enough to make the attached

spreadsheets admissible under Rule 1006 and justify granting summary judgment for the

plaintiffs.

. Here too, the Smith declaration includes the amounts that the

Fund calculated are due from the defendant and provides a detailed explanation of how those

amounts were calculated. See Smith Decl. ¶¶ 26–36. And, as in Harborview Healthcare Center

and Bristol Manor Healthcare Center, the Court concludes that the spreadsheets reflecting those

amounts and calculations qualify as admissible summaries of voluminous evidence under Rule

1006.

Third, the defendant argues that the plaintiffs’ documents fail to specify what eligibility

criteria the Fund applied when determining the contributions owed and whether overtime pay

was properly excluded from its calculations. See Def.’s Opp’n at 5; see also Jasinski Decl. ¶¶ 6–

12. But the Fund based its calculations on the hours reported by the defendant in its remittance

reports. Pls.’ Reply at 11; Smith Decl. ¶¶ 28–29. It was the defendant’s responsibility to apply

15

the appropriate eligibility criteria and exclude overtime hours before submitting those hours to

the Fund. Pls.’ Reply at 11; Smith Decl. ¶¶ 28–29. And if the defendant mistakenly included

ineligible employees or overtime hours in its submissions, it must point to those mistakes with

specificity now to create a genuine dispute; it cannot simply assume that the Fund somehow

introduced ineligible workers or overtime hours in its calculations. See Harborview Healthcare

Ctr., Inc.,

(rejecting defendant’s suggestion “that plaintiffs may have

erroneously included overtime hours or other ineligible hours” because “the spreadsheets [we]re

based on defendant’s remittance reports and thus include[d] only ‘covered’ hours”); see also

at 19 & n.11 (concluding that “[the] defendant cannot avoid summary judgment simply by

speculating that plaintiffs may have erroneously included ineligible hours without offering any

evidentiary support for that contention” other than “[t]he declaration from defendant’s attorney

[Jasinski] stating that he believes such an error might have occurred”).

The Court finds that nothing in the Jasinski declaration creates a material and genuine

dispute of fact sufficient to defeat the plaintiffs’ motion for summary judgment.9

9 The defendant points to one case in which the court declined to grant summary judgment based on spreadsheets submitted by a Pension Fund. Def.’s Opp’n at 4 (citing Serv. Emps. Int’l Union Nat’l Indus. Pension Fund v. Hamilton Park Health Care Ctr., Ltd.,

(D.D.C. Jan. 14, 2016)). But in that case, the court relied on specific flaws in the plaintiffs’ calculations not present here. The court described the fund’s offered spreadsheet as “a remarkably inscrutable and unhelpful document” because its “bottom-line assessment” was “disconnected from the other information presented” and “[n]one of the columns add[ed] up to any of the[] [total] figures.”

. But those flaws were unique to the spreadsheet presented in that case, as the court went out of its way to acknowledge.

(“In light of the narrow, fact-intensive, and case-specific manner in which it will deny this motion, the Court doubts an opinion will be of use to anyone other than these parties.”). Here, the Court has no difficulty understanding how the figures presented by the Fund relate to one another and lead to the total amounts sought.

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C. The Settlement Agreement

The defendant argues that a Settlement Agreement dated September 20, 2010 bars the

plaintiffs from recovering any contributions from January 2009 to March 2010. See Def.’s

Opp’n at 6 (citing Jasinski Decl. Ex. B.). That agreement states:

The $226,878.25 payment represents full settlement of all months in which the Pension Fund claims the Facilities . . . were delinquent in remitting Pension Fund contributions on behalf of bargaining unit employees during the period of September 2002 through March 2010 and the Pension Fund has agreed to accept this amount for the periods noted above in full and final settlement of these claimed deficiencies.

Jasinski Decl. Ex. B.

As an initial matter, the Fund was not itself a party to the agreement, which settled certain

“unfair labor practice charges” between the defendant10 and the 1199 SEIU United Healthcare

Workers East union.

Moreover, as the plaintiffs point out, the agreement refers only to

“delinquent” contributions, not amounts due pursuant to an audit.

The Collection Policy,

however, draws a distinction between the two, and provides a separate collection procedure for

each. Pls.’ Reply at 14; see also Pls.’ Mot. for Summ. J. Ex. 3, §§ 2, 4. Finally, the agreement is

limited to “these claimed deficiencies”—that is, those claimed by the parties at the time of the

settlement agreement. Jasinski Decl. Ex. B. It does not purport to cover amounts found to be

due many years later as a result of an audit.

The plaintiffs do not seek delinquent contributions from the relevant time period; they

seek only amounts due pursuant to a 2015 audit. Compl. ¶ 22. Because the Fund is not a party

to the agreement, and because the agreement by its terms covers only “delinquent” contributions

10 Although “Parkway Healthcare, LLC” was not a party to the agreement either, the plaintiffs explain that the defendant used do business as “Bristol Manor Healthcare Center,” Smith Decl. ¶¶ 6, 47, which the defendant does not appear to dispute.

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claimed in 2010, see Jasinski Decl. Ex. B, the Court finds that the plaintiffs may recover those

amounts notwithstanding the Settlement Agreement.

D. Costs and Attorneys’ Fees

ERISA provides for mandatory attorneys’ fees and costs in any action “by a fiduciary for

or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the

plan is awarded.”

(g)(2). This action qualifies, as it is brought to enforce the

defendant’s obligation under § 1145 “to make contributions to a multiemployer plan under the

terms of the plan or under the terms of a collectively bargained agreement.” Id. § 1145.

Therefore, the Court will—and must—award reasonable attorneys’ fees and costs pursuant to

§ 1132(g)(2). The Court will direct the plaintiffs to file a petition for attorneys’ fees and costs

and will retain jurisdiction over this matter for the limited purpose of addressing that issue.

E. Permanent Injunction

“It is well-settled that economic loss alone will rarely constitute irreparable harm.”

Naegele v. Albers,

(D.D.C. 2012) (citing Wis. Gas Co. v. Fed. Energy

Regulatory Comm’n,

, 674 (D.C.Cir. 1985)). “This is because economic injuries are

generally reparable with monetary damages in the ordinary course of litigation.” Id.

The plaintiffs argue that, in addition to the missing payments, they have suffered the

harm of “continued need for litigation against a recalcitrant employer.” Pls.’ Reply at 16.

Specifically, the plaintiffs argue that the defendant has failed to pay outstanding court judgments

and has continually disregarded its duty to pay the supplemental contributions required by the

Preferred Schedule in the Collective Bargaining Agreement, despite court findings recognizing

its obligation to do so. Id. at 15. But the Court does not find these economic harms irreparable,

particularly given the mandatory attorneys’ fees and costs provided by

(g)(2).

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And to the extent the defendant has failed to comply with other courts’ judgments or orders, the

plaintiffs have other avenues of relief available to them besides obtaining an injunction in this

suit, such as filing a motion for civil contempt. See Int’l Painters & Allied Trades Indus.

Pension Fund v. ZAK Architectural Metal & Glass LLC,

, 37–38, 40 (D.D.C.

2010) (ordering defendant-employer to show cause after failing to comply with court order

requiring it to submit to pension fund audit). The Court will therefore deny the plaintiffs’

request for injunctive relief.

CONCLUSION

For the foregoing reasons, the Court will grant the plaintiffs’ motion for summary

judgment in part and deny it in part. A separate order accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge Date: September 30, 2018

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