such a settlement. The only evidence provided to oppose the summary judgment motion is Defendant's President's affidavit. This affidavit states "I made what I thought was a settlement agreement . . . ." This averment is a far cry from the evidence required to create a genuine issue of material fact. Anderson, 477 U.S. at 251 ("mere scintilla" of evidence not enough to survive summary judgment).
Defendant's only other argument in opposition to this motion is that a case cited by Plaintiffs is inapplicable because of variant facts. Plaintiffs cited Carpenters Health & Welfare Fund v. Building Tech. Inc., 747 F. Supp. 288 (E.D. Pa. 1990) as support for the proposition that a fiduciary may seek recovery of delinquent payments to a pension plan protected by ERISA. Defendant does not challenge the legal support Carpenters lends to this case, but argues that because this case is at a different procedural stage that it is inapplicable. We disagree. The substantive law does not change at the various points of a lawsuit, and so the substantive law used to resolve the Carpenters non-jury trial is the same law we apply to this summary judgment motion.
Accordingly, because Defendant has admitted every material allegation in Plaintiffs' Motion for Summary Judgment, we find that there are no genuine issues of material fact and that summary judgment is appropriate.
An appropriate Order follows.
AND NOW, this 14th day of March, 1995, upon consideration of Plaintiffs' Motion for Summary Judgment and responses thereto, the Motion is hereby GRANTED and judgment is entered in favor of the Plaintiffs and against Defendant on all delinquent contributions arising on or after January 1, 1993. It is ORDERED that Defendant shall pay Plaintiffs $ 29,151.08, representing the principal balances of outstanding contributions, interest on such contributions and liquidated damages on such delinquent contributions. It is FURTHER ORDERED that Defendant shall pay Plaintiffs:
(1) attorneys' fees and costs associated with this litigation and
(2) auditor's fees and expenses incurred by Plaintiffs in this matter.
Plaintiffs shall submit a statement of such fees and costs within 15 days of the date of this Order's entry.
It is FURTHER ORDERED that Defendant is enjoined to pay any and all future contributions to the Plaintiff Fund as they become due in accordance with both the terms of the collective bargaining agreements to which Defendant is a party and the governing documents of the Plaintiff Fund.
BY THE COURT:
J. CURTIS JOYNER, J.
© 1992-2004 VersusLaw Inc.