Serv. Emps. Int'l Union Nat'l Indus. Pension Fund v. Roseen Realty Corp.
Serv. Emps. Int'l Union Nat'l Indus. Pension Fund v. Roseen Realty Corp.
Opinion of the Court
In this suit, the Service Employees International Union National Industry Pension Fund and its Trustees (the Fund) seek unpaid pension fund contributions from Roseen Realty Corporation (doing business as the Arnold Walter Nursing Home) under the Employee Retirement Income Security Act. The Fund claims that Arnold Walter owes $29,830.53 in contributions and interest, plus attorney's fees and costs. Arnold Walter asserts that the Fund's calculations for both amounts are unreliable. For the reasons explained below, I find that no genuine dispute exists as to any material fact, and will enter summary judgment for the Fund.
I. Background
The Fund seeks unpaid contributions from Arnold Walter for a period of seventeen months, from July 2015 through November 2016. Decl. of Kisha Smith, Ex. A, Mot. Summ. J. (Smith Deck).
On top of the base rate, Arnold Walter must pay (1) interest on delinquent contributions "at the rate of ten percent (10%) per annum," (2) liquidated damages (calculated as the greater of interest owed or "20% of the delinquent contributions,"), and (3) attorney's fees and costs. Compl. Ex. 5 at 8-9. These obligations are spelled out in the Fund's Collections Policy, id. , and authorized by the Fund's Agreement and Declaration of Trust (Trust Agreement), Compl. Ex. 4, Sec. 3.2, both of which are explicitly incorporated into the CBA. Compl. Ex. 1, Art. 30, Sec. 30.4 ("The Employer hereby agrees to be bound by the provisions of the Agreement and Declaration of Trust establishing the Fund ... and by all resolutions and rules adopted by the Trustees ... including collection policies, receipt of which is hereby acknowledged."). Under the Collections Policy, attorney's fees must be "assessed ... at a reasonable hourly rate (which rate shall be no less than the hourly rate charged to the Fund for such services) for all time spent by legal counsel in collection efforts." Compl. Ex. 5 at 8.
The Employee Retirement Income Security Act (ERISA) "makes a federal obligation of an employer's contractual commitment to contribute to a multiemployer pension fund." Flynn v. R.C. Tile ,
Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plans or such agreement.
Arnold Walter also must pay a surcharge to comply with the Pension Protection Act of 2006 (the PPA), which is an amendment to ERISA. Under the PPA, a multiemployer benefit plan that is in "critical status" must "adopt and implement a rehabilitation plan,"
*135Failure to pay the rehabilitation plan's extra contributions "shall be treated as a delinquent contribution under section 1145 of this title [ERISA] and shall be enforceable as such."
The Fund calculates that Arnold Walter owes $29,830.53 in unpaid base and supplemental contributions, along with interest on unpaid amounts and liquidated damages. Mot. Summ. J. 7; Smith Deck ¶ 28. The Fund reached this total based on the remittance reports that Arnold Walter submitted, taking "the hours reported by the Defendant itself and multipl[ying] it by the base rate for contributions ... and the rate of supplemental contributions as required by the Fund's Rehabilitation Plan." Mot. Summ. J. 6-7; Smith Decl. ¶ 6. The difference between the amount due and the amount paid is the underpayment, from which interest and liquidated damages can be calculated. Smith Decl. ¶ 26-27, Ex. A (dated March 15, 2017); Pl.'s Statement of Mat. Facts Not in Dispute ("interest [is] calculated through March 15, 2017"). The Fund has submitted a chart detailing the month-by-month totals, in lieu of providing the actual remittance reports and financial records.
The Fund also claims that Arnold Walter owes a total of $11,217.00 in attorney's fees and costs. Decl. of Andrew Lin, Mot. Summ. J. (Lin Decl.) (documenting $6,950.00 in attorney's fees and $510 in costs); Supp. Decl. of Andrew Lin (Supp. Lin Deck) (documenting $4,267.00 in additional attorney's fees).
In response, Arnold Walter submits an affidavit from one of its attorneys, who asserts that "[t]o the extent Plaintiffs believe required contributions have not been made, the Pension Fund has improperly included ... certain individuals who have not met the required threshold criteria," because "only employees who have been employed at least ninety (90) days are eligible to have contributions made on their behalf." Decl. of David Jasinksi ¶¶ 6, 10 Def.'s Opp. Mot. Summ. J. The declaration also says that "on a monthly basis, Arnold Walter determines how much it owes in pension fund contributions and creates a remittance report listing the pension fund contribution amounts."
II. Legal Standards
To prevail on a motion for summary judgment, a movant must show 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. ,
III. Analysis
The Fund has moved for summary judgment, and Arnold Walter does not dispute liability. Rather, it claims that "genuine issues of material fact persist as to the amount of damages," Opp. 3, and "the Court must significantly adjust down the amount [in attorney's fees] requested." Id. at 5-6. I am satisfied that no reasonable jury could find for Arnold Walter on the question of liability, given the Fund's allegations, the governing documents and supporting evidence, and Arnold Walter's failure to dispute the point. For the reasons stated below, I also find that no genuine issue of material fact remains as to the amount requested in either damages or attorney's fees. Accordingly, summary judgment will be entered for the Fund.
A. The Fund has Adequately Demonstrated the Amount of Damages
To prove the amount of damages, the Fund relies on the affidavit of Ms. Smith, its Contributions Compliance Manager, who "maintain[s] the Fund's records, determine[s] whether participating employers have satisfied their obligations, and assist[s] in efforts to collect delinquent contributions." Smith. Decl. ¶¶ 1-2. Ms. Smith, in turn, lays out her calculation methods in detail, including a step-by-step explanation of the math involved. Id. at ¶¶ 21-28. In making these calculations, Ms. Smith relies on "the remittance reports that Defendant provided to the Fund, the contributions that Defendant remitted ... the dates on which the reports and contributions were received, and the interest and liquidated damages that were assessed on any underpaid or late paid contributions." Id. at ¶ 21. In support of her findings, Ms. Smith has attached "[a] spreadsheet detailing the amounts due from the Defendant for the period of August 2015 through November 2016." Id. at ¶ 23; id. Ex. A.
The Fund's spreadsheet summarizing Arnold Walter's liability on a month-by-month basis is competent and admissible evidence. Federal Rule of Evidence 1006 allows the use of a "summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court."
For a summary of documents to be admissible, [1] the documents must be so voluminous as to make comprehension by the jury difficult and inconvenient; [2] the documents themselves must be admissible; [3] the documents must be made reasonably available for inspection and copying; [4] the summary must be accurate and nonprejudicial; and [5] the witness who prepared the summary should introduce it.
United States v. Fahnbulleh ,
*137for a factfinder. Hemphill ,
Arnold Walter does not dispute three of the remaining four requirements, each of which is easily satisfied. The underlying documents would be admissible, see Fahnbulleh ,
The only other disputed requirement is that "the summary must be accurate and nonprejudicial." Fahnbulleh ,
But if this is so, why does Arnold Walter not dispute the question of liability? And more centrally: what is the evidence for the assertion that Arnold Walter has paid in full, or that the Fund has improperly included new employees? None at all.
A review of comparable cases shows that similar evidence-free arguments from ERISA employers (undergirded by similar affidavits from the same attorney) have been rejected by other courts. In Serv. Employees Int'l Union Nat'l Indus. Pension Fund v. Bristol Manor Healthcare Ctr., Inc. , the district court rejected an accusation that the Fund was only "summarily stat[ing] the amounts they believe are owed" in a spreadsheet, and then "expect[ing] Bristol Manor and the Court to take the alleged amounts owed on their face."
[T]he spreadsheets are based on defendant's remittance reports and thus include only "covered" hours. Moreover, the remittance reports were produced by Harborview, so defendant has possession of any evidence that might contradict plaintiffs' evidence and, thus, has the ability to offer its own analysis. Under *139such circumstances, defendant cannot avoid summary judgment simply by speculating that plaintiffs may have erroneously included ineligible hours without offering any evidentiary support for that contention.
B. The Fund's Requested Attorney's Fees Are Reasonable
Arnold Walter's challenge to the amount of attorney's fees also fails. When a judgment is awarded to enforce ERISA Section 515,
IV. Conclusion
For these reasons, I will grant the Fund's motion for summary judgment, and retain jurisdiction for enforcement. The total award will be for $41,557.53, totaling $29,830.53 in unpaid contributions, interest, and liquidated damages, plus $11,217.00 in attorney's fees, and $510.00 in costs. A separate order will issue.
The "Contribution Month[s]" used to reach the Fund's final tally are July 2015 through November 2016. Id. Although the Fund claims that it seeks monies "[f]or the period of August 201.5 through November 2016," Compl. ¶ 26, this is apparently because the due date for each contribution month falls on the 15th day of the following month, resulting in due dates that begin on August 15, 2015. See Smith Deck Ex. A.
Though the Fund alleges that Arnold Walter was party to the CBA "[a]t all relevant times," the CBA's terms did not last through November 2016, at least according to the arbitration award. Compl. Ex. 3 at 20 ("The term of the Agreement shall be March 1, 2012, through June 30, 2016"). However, the parties do not dispute Arnold Walter's liability, perhaps because the CBA has been renewed, automatically or otherwise. See Compl. Ex. 1 at 28 (the CBA expires on "February 28, 2013, at midnight, and shall be automatically renewed for a period of four (4) years [except in certain circumstances.]"). In any event this fact (though material) is not in genuine dispute.
The total of $11,217 ($6,950 + $4,267) omits the alleged costs of $510 (a $400 filing fee + $110 in service of process fees). Compare Supp. Lin. Decl. ¶ 17 with Lin Decl. 6-7.
Mr. Jasinski's underlying affidavit fails to satisfy the requirements of Fed. R. Civ. P. 56(c)(4), because he does not assert that his claims are "made on personal knowledge," nor does the affidavit "show that the affiant or declarant is competent to testify on the matters stated." I also note that Mr. Jasinski appeared on behalf of Arnold Walter, and signed the opposition brief. Opp. 6. Although not prohibited in this jurisdiction, serving as both affiant and advocate in the same case is a dubious practice. See Kelley v. Eli Lilly & Co.,
The Defendant makes a fleeting suggestion that the motion for summary judgment was "improvidently filed" because "no discovery has yet been completed." Opp. 1. But Arnold Walter itself joined in a proposal for summary judgment briefing, and did not seek discovery. See ECF No. 8. "A party cannot avoid summary judgment under Federal Rule of Civil Procedure 56(d) simply by claiming that it needs more time to discover facts to support its opposition. Rule 56(d) requires a party [to] articulate what facts it hopes to discover and why those facts are needed."Serv. Employees Int'l Union Nat'l Indus. Pension Fund v. Castle Hill Health Care Providers, LLC ,
Reference
- Full Case Name
- SERVICE EMPLOYEES INTERNATIONAL UNION NATIONAL INDUSTRY PENSION FUND v. ROSEEN REALTY CORP.
- Cited By
- 2 cases
- Status
- Published