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Trustees of the National Elevator Industry Pension, Health v. the Elevator Guild

January 23, 2013

TRUSTEES OF THE NATIONAL ELEVATOR INDUSTRY PENSION, HEALTH BENEFIT, EDUCATIONAL, ELEVATOR INDUSTRY WORK PRESERVATION FUNDS, ELEVATOR CONSTRUCTORS ANNUITY AND 401(K) RETIREMENT PLAN, PLAINTIFF,
v.
THE ELEVATOR GUILD, LLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rufe, J.

MEMORANDUM OPINION

The Board of Trustees of the National Elevator Industry Pension, Health Benefit, Educational, Elevator Industry Work Preservation Funds, Elevator Constructors Annuity and 401(k) Retirement Plan ("the Funds") bring this action pursuant to the Employees Retirement Income Security Act ("ERISA"), seeking to recover delinquent contributions from The Elevator Guild, Inc. ("the Guild") which are allegedly due under the terms of a Collective Bargaining Agreement to which the Guild is a signatory. Default judgment has been entered against the Guild for failure to defend this lawsuit. *fn1 The Funds also asserted an ERISA action against the Guild's owner and officer, Christian Goetting, for breach of his fiduciary obligations. Before the Court is Plaintiff's Motion for Summary Judgment against Goetting, which is unopposed. *fn2 For the reasons set forth below, the Court will grant summary judgment on the issue of Goetting's liability.

I. P ROCEDURAL H ISTORY

Plaintiffs filed their Complaint on April 29, 2011, "to enforce an employer's contractual obligation to submit benefit payments pursuant to a Collective Bargaining Agreement, to collect amounts found due in an audit . . . and to enjoin the violations of the terms of employee benefit plans." *fn3

The Complaint asserted a breach of contract claim and an ERISA claim against the Guild for failure to make required contributions to pension funds, and sought an injunction requiring the Guild to submit timely contributions and reports to the Funds. The Complaint also asserted a claim for breach of fiduciary duties under ERISA by Christian Goetting, the owner and an officer of the Guild. Plaintiffs alleged that Goetting was a fiduciary to the Funds under ERISA §3(21)(A) by virtue of the fact that he exercised authority and control over the benefit plan assets. Therefore, Plaintiffs asserted that Goetting is personally liable for all amounts owed by the Guild, including contributions due for work performed, liquidated damages, interest, costs, and attorneys' fees.

The Complaint was served on Diane Goetting, Defendant Christian Goetting's wife, at home on May 18, 2011. This constituted proper service on Goetting as an individual. *fn4 When Defendants failed to timely answer or respond, Plaintiffs filed a praecipe for default on June 9, 2011; the Clerk of Court entered default for failure to appear, plead or otherwise defend on that date. The next day, June 10, 2011, Goetting filed an answer, pro se, on his own behalf and on behalf of the Guild. Plaintiffs filed a motion to strike the Answer. On August 30, 2011, the Court lifted the default against Goetting and allowed him to proceed pro se , but struck the Answer with regard to the Guild, because Goetting, as a non-attorney, could not represent the interest of that corporate entity. The Court granted the Guild 30 days to obtain counsel and file an answer. *fn5

On December 27, 2011, Plaintiffs filed a Motion for Default Judgment against the Guild, as no counseled answer or other response had ever been filed on its behalf. The Court set a status conference for March 12, 2012, at which Defendants failed to appear. At that conference, the Court asked Plaintiffs to submit supplemental briefing with regard to proper service on the Guild, as service on that entity had been effectuated by service on Goetting's wife, Diane Goetting, at home, on May 18, 2011. In response to the Court's concern about service on the Guild, Plaintiffs submitted supplemental briefing on March 15, 2012, to which Defendants did not respond. On the basis of the documentation provided, the Court found that service on the Guild was proper. Because counsel had not appeared or responded for the Guild, the Court then entered by default judgment on liability against the Guild, reserving the issue of damages for later determination. *fn6

On March 29, 2012, after a Rule 16 Scheduling Conference at which Goetting failed to appear, the Court issued a scheduling order to govern the case against the remaining defendant, Goetting. In accordance with the deadlines set forth in the scheduling order, Plaintiff filed a Motion for Summary Judgment. Goetting did not file a response opposing that Motion.

II. S TATEMENT OF F ACTS

The facts recited below are uncontested by virtue of Goetting's failure to respond to Plaintiffs' requests for admissions and failure to respond to the Motion for Summary Judgment. *fn7

Goetting is owner and/or an officer of the Guild. *fn8 As an officer of the Guild, Goetting signed a Collective Bargaining Agreement ("CBA") with the International Union of Elevator Contractors on June 12, 2007, agreeing, inter alia, that the Guild would remit contributions to the Fund for each hour worked by any employee of the Guild covered by the CBA. *fn9 The CBA, in conjunction with the Agreements and Declaration of Trust ("Declaration of Trust") to which the Guild was bound as a party to the CBA, required the Guild to report to the Funds, by the 15th day of each month, the number of hours worked by its employees in the prior month and pay the contributions due to the Funds at that time. *fn10

The CBA clearly states that "[t]itle to all monies paid into and/or due and owing. . . shall vest in and remain exclusively in the Trustees of said Funds." The Agreements and Declarations of Trust provide that the Trustees may take action to collect all contributions due to the Funds should the employers fail to pay, as well as liquidated damages authorized by ERISA, interest, and attorneys' fees and costs. *fn11

The Guild employed individuals covered by the CBA during the effective period of the CBA (July 9, 2007 through July 8, 2012). *fn12 Goetting exercised authority and control over payroll deductions and payment of contributions to the Funds for those employees, as well as the payment of other business expenses. *fn13 From July 2007 through November 2010, Goetting signed and submitted to the Funds the required reports regarding the number of hours worked by the Guild employees, *fn14 but he failed to remit the corresponding payments for many of those ...


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