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Trustees of the National Elevator Industry Pension v. Gateway Elevator Inc. and Fred Wuelling

June 21, 2011

TRUSTEES OF THE NATIONAL ELEVATOR INDUSTRY PENSION, HEALTH BENEFIT, EDUCATIONAL, ELEVATOR INDUSTRY WORK PRESERVATION FUNDS, ELEVATOR CONSTRUCTORS ANNUITY AND 401(K) RETIREMENT PLAN, PLAINTIFFS,
v.
GATEWAY ELEVATOR INC. AND FRED WUELLING, JR., DEFENDANTS.



The opinion of the court was delivered by: Gene E.K. Pratter,j.

MEMORANDUM

The Boards of Trustees of the National Elevator Industry Pension, Health Benefit, Educational Elevator Industry Work Preservation, Elevator Constructors Annuity and 401(k) Retirement Plan Funds (the "NEI Trust Funds") have brought this action pursuant to the Employee Retirement Income Security Act ("ERISA). The NEI Trust Funds seek to recover certain delinquent benefit contributions from Gateway Elevator Inc. ("Gateway Elevator") and Fred Wuelling, Jr., president and owner of Gateway Elevator, allegedly due under a collective bargaining agreement and a settlement agreement.

The NEI Trust Funds moved for summary judgment, which is unopposed.*fn1 For the reasons discussed below, the Court grants summary judgment as to Count II and partial summary judgment on the issue of liability as to Counts I and III.

FACTS*fn2

The NEI Trust Funds are multi-employer employee benefit plans established pursuant to sections 3(3) and 3(37) of ERISA, 29 U.S.C. § 1002(3) and (37). Defs.' Answer ¶ 2. Gateway Elevator is a Missouri corporation engaged in the business as a contractor or subcontractor in the elevator industry. Id. ¶ 5. Mr. Wuelling is Gateway Elevator's president, only board member, and registered agent. Pls.' Mot. Ex. 1; id., Ex. 2, Betts Ex. 3 (Company Information Form). He owns all of the company's shares. Id., Ex. 2, Betts Ex. 3 (Company Information Form).

Gateway Elevator entered into a collective bargaining agreement with the International Union of Elevator Constructors on July 8, 2002 and May 13, 2009, with Mr. Wuelling signing the agreement on behalf of Gateway Elevator. Defs.' Answer ¶¶ 6, 23; Pls.' Mot., Ex. 2, Betts Ex. 1 (Collective Bargaining Agreements). Pursuant to the collective bargaining agreement, Gateway Elevator agreed to remit contributions to the NEI Trust Funds on behalf of certain of its employees covered by the agreement. Defs.' Answer ¶ 6. The collective bargaining agreement, in conjunction with the Declaration of Trust, which provides the terms for establishing and maintaining the NEI Trust Funds, require by the 15th of every month for Gateway Elevator to file with the NEI Trust Funds' office reporting forms indicating the number of hours certain of Gateway Elevator's employees worked under the collective bargaining agreement; such reporting provides the basis for calculating contributions owed to the NEI Trust Funds. Id. ¶ 2; Req. for Admis. ¶ 7. Pursuant to the collective bargaining agreement and Declaration of Trust, those contributions are due to the NEI Trust Funds within 15 days of each month. Req. for Admis. ¶ 7; Pls.' Mot., Ex. 2, Betts Ex. 4, ¶ 4 (Amendment to Declaration of Trust).

The "contributions due the Plaintiffs' Funds were plan assets governed by ERISA. 29 C.F.R. §2510.3-102(a)." Defs.' Answer ¶ 26.*fn3 The collective bargaining agreement provides that once the contributions are "paid into and/or due and owing to" the funds, they vest as assets of the fund. See Pls.' Mot., Ex. 2, Betts Ex. 1 ¶ 7 (Collective Bargaining Agreements) ("Title to all the monies paid into and/or due and owing to the [NEI Trust Funds] . . . shall vest in and remain exclusively in the Trustees of said Funds, respectively.").

During the period of September 2008 to the filing of the Motion, Gateway Elevator's employees were covered by the agreement. Req. for Admis. ¶ 6. However, for the months of September 2008 through May 2009, although Gateway Elevator filed reporting forms, it did not pay benefit contributions when due. Id. ¶ 8. On June 10, 2009, Gateway executed a settlement agreement with the NEI Trust Funds to pay $38,839.81 for delinquent contributions and interest for the period of September 2008 through May 2009. Id. ¶ 9; Pls.' Mot., Ex. 2, Betts Ex. 3 (Settlement Agreement). Mr. Wuelling signed the settlement on behalf of Gateway Elevator.

Pls.' Mot., Ex. 2, Betts Ex. 3 (Settlement Agreement). Gateway Elevator paid $8,000 pursuant to the settlement agreement. Pls.' Mot. Ex. 2, Betts Ex. 2. It has not, however, paid the balance of $30,839.81. Req. for Admis. ¶¶ 9, 11; Pls.' Mot. Ex. 2, Betts Aff. ¶¶ 6-7.

Additionally, Gateway Elevator is delinquent as to contributions for the month of July 2009 due to NEI Trust Funds under the collective bargaining agreement. See Req. for Admis.

¶¶ 5, 12-13; Pls.' Mot. Ex. 2, Betts Aff. ¶¶ 2, 8-9. Gateway Elevator reported $10,785.50 in contributions for July 2009, but has not paid those contributions to the NEI Trust Funds. Req. for Admis. ¶ 13; Pls.' Mot. Ex. 2, Betts Aff. ¶ 9. Since the filing of this action, Gateway Elevator also has been delinquent for contributions for the 13 months of August 2009 through August 2010, Pls.' Mot. Ex. 2, Betts Aff. ¶ 14, and has failed to report hours from August 2009 through September 2010 for its employees by the 15th of each month as required by the collective bargaining agreement, id. Ex. 2, Betts Aff. ¶¶ 12, 5.

STANDARD OF REVIEW

Under Local Rule of Civil Procedure 7.1(c), Federal Rule of Civil Procedure 56 governs unopposed summary judgment motions, as is the case with the Motion at bar. The Court may grant summary judgment pursuant to Rule 56 if the "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials," if any, "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(c), (a). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.

When a non-moving party fails to respond to a summary judgment motion, a court mayonly grant the unopposed motion upon a finding that judgment for the moving party is "appropriate." Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir.1990). Summary judgment is "appropriate" when the movant ...


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