The opinion of the court was delivered by: Alan Kay United States Magistrate Judge
Pending before the Court are Defendant Dick Corporation's Motion to Alter or Amend the Judgment  and Plaintiff Fund's Opposition to Defendant's Motion to Alter or Amend the Judgment .
This case involves Plaintiffs' claim that Defendant Dick Corporation breached a Collective Bargaining Agreement ("CBA") that was in effect at its Florida job sites by employing non-union subcontractors.*fn1 (Mem. Op. , at 2.) On June 16, 2008, the Court found "that there is no genuine issue of material fact as to the existence of a CBA in effect at Dick Corporation's Florida job sites such that the Fund is entitled to summary judgment." (Id. 7.) Because Dick Corporation did not dispute that it breached the CBA by employing non-union subcontractors, the Court then calculated the damages that Dick Corporation owed to Plaintiffs on account of its breach. (Id.)
Plaintiffs sought $1,893,737.71, representing $727,345.78 in delinquent contributions, $577,983.88 in interest, $577,983.88 in additional interest, $10,424.17 in expenses, and attorneys' fees in an amount to be determined later pursuant to Section 502(g)(2) of the Employee Retirement Income Security Act of 1974 ("ERISA").*fn2 (Id.) To establish the amount of contributions that Plaintiffs would have received absent Dick Corporation's breach of the CBA*fn3 , Plaintiffs submitted a declaration from Philip Vivirito ("Vivirito Decl."), an independent auditor who reviewed Dick Corporation's books and records. (Id. 8.) Mr. Vivirito examined the payroll records of Dick Corporations's subcontractors "to determine which employees of Dick Corporation and its subcontractors were performing [ ] work" covered by the CBA." (3d Vivirito Decl. [59-5] ¶ 4.) The payroll records allowed Mr. Vivirito to determine which employees were performing covered work because they "specifically indicated the type of work each employee was performing by stating, next to each employees name, 'bricklayer,' 'laborer,' etc." (Id.) For one of Dick Corporation's subcontractors, Capform, Inc. ("Capform"), Dick Corporation failed to provide Mr. Vivirito with certified payroll records, and accordingly Mr. Vivirito "did not have information indicating the names of the employees who performed the work or the number of hours that each employee worked in each of the various months covered by the audit." (Id. ¶ 7.) Because Mr. Vivirito "only had the total number of man hours attributable to Capform, Inc.'s subcontractors in Florida," Mr. Vivirito "included these hours in calculating the damages owed by Dick Corporation by allocating them evenly to each month covered by the audit." (Id.)
Mr. Vivirito's "audit revealed that Dick Corp.'s subcontractors failed to report and remit contributions for a total of 155,062 hours paid to its employees for bargaining unit work performed under the Florida agreement." (Vivirito Decl. [61-4] ¶ 7.) Using the contribution rates set forth in the Blanco Declaration, Mr. Vivirito determined that Dick Corporation owed delinquent contributions in the amount of $727,345.78. (Id. ¶¶ 8-9.) Mr. Vivirito also calculated the amount of interest and additional interest that the Fund is entitled to recover under ERISA. In accordance with the Collection Procedures of the Central Collections Unit of the Bricklayer and Allied Craftworkers ("Collection Procedures"), Mr. Vivirito assessed interest on the delinquent contribution at a rate of fifteen per cent per annum and determined that the total interest due was $577,983.88. (Id. ¶ 10.) Mr. Vivirito also assessed additional interest in accordance with the Collection Procedures at a rate of fifteen per cent per annum and determined that Dick Corporation owed an additional $577,983.88 in interest. (Id. ¶ 11.) Based on these calculations, Mr. Vivirito concluded that Dick Corporation owed a total of $1,155,967.76 in interest and additional interest. (Id. ¶ 13.)
Dick Corporation did not challenge Plaintiffs' claim for attorneys' fees*fn4 and costs or their entitlement to, or Mr. Vivirito's calculation of, interest and additional interest. (Mem. Op. 9.) Dick Corporation did, however, challenge Plaintiffs' calculation of delinquent contributions and argued that there were "significant disputed material facts regarding the quantum of contributions" such that a grant of summary judgment in favor of Plaintiffs on the issue of damages would be inappropriate. (Id.) Specifically, Dick Corporation asserted that there were disputes about "how much of the work subcontracted by Dick Corporation was covered by the Florida CBA's trade jurisdiction such that this subcontracting violated the Florida CBA." (Def.'s Br. , at 23.) In support of this contention, Dick Corporation submitted declarations that suggested that Mr. Vivirito improperly included work performed by employees of three subcontractors - ArtCrete & Restorations, Inc. ("ArtCrete"), Johnston & Simmons Concrete Placing and Finishing, Inc. ("Johnston"), and Capform, when computing the delinquent contributions owed to Plaintiffs. (Mem. Op. 9.)
As to the work performed by ArtCrete, Dick Corporation submitted a declaration from Wilbert E. Fisher ("Fisher Decl."), Dick Corporation's General Superintendent on the Miami Federal Courthouse project. (Fisher Decl. [59-5] ¶ 1.) Mr. Fisher stated that "[e]mployees who perform the sort of concrete finishing work performed by ArtCrete & Restorations, Inc. on this project are represented in this geographic area by Operative Plasterers and Cement Masons International Union, rather than by the Bricklayers and Allied Craftworkers ("BAC"). (Id. ¶ 4.) As to the work performed by Capform's subcontractors on the Miami Federal Courthouse project, Mr. Fisher stated that employees who perform the rebar placement, concrete finishing, and concrete placement work performed by Capform's subcontractors are represented by unions other than the BAC. (Id. ¶¶ 5-7.) Finally, as to the work performed by Johnston, Dick Corporation submitted a declaration from Shelby J. Gardner ("Gardner Decl."), Dick Corporation's Project Manager on the Fort Myers, Florida Midfield Terminal Expansion Project. (Gardner Decl. ¶ 1.) Mr. Gardner stated that the work performed by Johnston on this project was limited to the placing and finishing of concrete slabs and related work and that employees who perform this type of work are represented by unions other than the BAC. (Id. ¶¶ 2, 4-5.)
Applying the burden-shifting framework set forth in Laborers' Pension Fund v. RES Environmental Services, Inc., 377 F.3d 735 (7th Cir. 2004), the Court found that the "generalized and conclusory allegations" in the Fisher and Gardner Declarations were insufficient to challenge Mr. Vivirito's calculation of delinquent contributions. (Mem. Op. 10-11.) Accordingly, the Court granted summary judgment for Plaintiffs on the issue of damages and ordered Dick Corporation to pay the full $1,893,737.71 that Plaintiffs sought. (Id. 11.) On June 30, 2008, Dick Corporation moved this Court to "alter and/or amend its June 16, 2008 judgment against Dick Corporation to deny Plaintiffs' motion for summary judgment with respect to the damages they seek, and order a damages trial." (Def.'s Mem. Supp. Mot. , at 1.) Dick Corporation now argues that by applying Laborers' Pension Fund and rejecting the Fisher and Gardner Declarations, "the Court misapplied the law and misconstrued the record evidence in finding that Dick Corporation did not raise a genuine dispute of material fact regarding the contributions to which Plaintiffs are entitled." (Id.) Dick Corporation seeks a damages trial to resolve the $1,314,175.80 factual dispute created by the Fisher and Gardner Declarations. (Id.)
Federal Rule of Civil Procedure 59(e) allows a party to file a motion to alter or amend a judgment within ten days after the entry of judgment. The decision to grant or deny a motion to alter or amend judgment is within the discretion of the district court, but the motion must rely on one of three grounds: an intervening change in the law, newly available evidence or the need to correct clear error of law or prevent manifest injustice. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). Reconsideration is appropriate when the Court has made a clear error of law or fact, or obviously misapprehended a party's position. See E.E.O.C. v. St. Francis Xavier Parochial School, 20 F. Supp. 2d 66, 68 (D.D.C. 1998) (granting reconsideration based on mistaken interpretation of ADA's twenty-five-employee threshold); Atl. States Legal Found. v. Karg Bros., Inc., 841 F. Supp. 51, 55 (N.D.N.Y. 1993) (granting reconsideration based on "misunderstanding of a relevant regulatory scheme").
The instant motion asks the Court to reconsider whether it properly applied Federal Rule of Civil Procedure 56(c) and Laborers' Pension Fund in concluding that Dick Corporation failed to demonstrate a genuine issue of material fact regarding damages. Rule 56(c) provides that a court should grant summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Once the moving party points to facts showing that there is an absence of evidence supporting the nonmoving party's case, the nonmoving party may not rest on mere allegations, but must point to specific facts in the record showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[T]he mere scintilla of evidence in support of [the non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving] party." Id. at 252. In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all inferences are to be drawn in his favor." Id.at 255.
Laborers' Pension Fund addresses the standard for summary judgment in the context of an employee benefit plan's suit to recover delinquent contributions from an employer under ERISA and the Labor Management Relations Act. Laborers' Pension Fund, 377 F.3d at 737. In that case, Plaintiffs ("the Funds") retained two firms to audit Defendant RES Environmental Services, Inc. ("RES")'s books and records to determine whether RES was satisfying its obligations under a CBA. Id. RES ultimately challenged one of the auditor's reports ("Graff Report"), claiming, in part, that the Graff Report included hours relating to work that was not covered by the CBA. Id. RES supported this contention with an affidavit from its owner ("Stewart Affidavit"), which stated that it was his personal opinion that auditors regularly include employees and hours that are not covered by the CBA. Id. at 737, 739. The Stewart Affidavit also identified five employees and stated that they performed work that was not within the scope of the CBA. Id. at 739.
The Court of Appeals affirmed the District Court's grant of summary judgment in favor of the Fund, agreeing that RES, through the Stewart Affidavit, failed to present a genuine issue of material fact for trial. Id. at 737, 739. The Court of Appeals found that the District Court properly "applied Seventh Circuit law when it held that once the Funds presented the audit report and established an absence of company records contradicting the Graff Report, the burden was on RES to establish a genuine issue of material fact barring summary judgment." Id. at 738-39. The Court further held that in cases involving "genuine questions about the accuracy of an employer's record-keeping practices" or a "deficiency in records," an evidentiary burden is imposed on employers to contradict the auditor's findings. Id. at 739. Finally, ...