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Flynn v. Dick Corp.

June 1, 2009


The opinion of the court was delivered by: Alan Kay United States Magistrate Judge


Pending before the Court are Defendant Dick Corporation's Motion for Reconsideration and for Leave to Supplement the Record [73], Plaintiff Fund's Opposition [77], and Defendant Dick Corporation's Reply [79]. Upon consideration of the pleadings, the record, and the relevant circumstances of the case, the Court will grant Defendant's motion.

I. Background

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. [64] 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. [64] at 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. [59] 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. at 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. [64] at 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. [67] at 1.) Dick Corporation argued 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 further argued that a damages trial was necessary to resolve the $1,314,175.80 factual dispute created by the Fisher and Gardner Declarations. (Id.)

This Court reviewed the relevant legal standards and concluded that while it was correct in holding that Dick Corporation failed to demonstrate a genuine issue of material fact as to the calculation of damages for work performed by Capform's subcontractors, the Court's application of evidentiary burden under Laborers' Pension Fund ArtCrete and Johnson was inappropriate in light of the fact that there was no deficiency in payroll or other company records. (Mem. Op. [71] at 9.) Without the heightened evidentiary burden, ArtCrete and Johnston needed only to point to specific facts in the record to create a genuine issue of material fact for trial, and the Court found that the Fisher and Gardner Declaration were sufficient in so doing. (Id.) As a result, the Court ordered a damages trail on the issue of the amount of damages, if any, that Dick Corporation must pay Plaintiffs for covered work performed by the two subcontractors. (Id.) On the claims concerning Capform, however, the Court reasoned that Dick Corporation's failure to provide Mr. Vivitrio with payroll records from Capform prevented him from accurately determining the amount and type of work preformed under Laborers Pension Fund. (Id. at 8.) In light of such a deficiency in records, the Court concluded that the burden fell on Dick Corporation to introduce specific factual assertions to dispute Mr. Vivirito's calculations. (Id.) Because, as the Court found in its earlier Memorandum Opinion, the Fisher declaration, which was offered by Dick Corporation as creating a genuine issue of material fact work performed by Capform's subcontractors, contained the precise types of "generalized and conclusory allegations" that were insufficient to prevent summary judgment in Laborers' Pension Fund, the Court determined that it should not alter its earlier ruling with respect to Capform. (Id. at 8-9.)

Dick Corporation subsequently moved for reconsideration and for leave to supplement the record with the Capform subcontractors' certified payrolls. (Def.'s Mot. for Reconsideration [73].) Dick Corporation argues that the interests of justice warrant allowing it to address the Capform subcontractor work at the damages trial because it was previously unaware of the importance that would be attached to the Capform subcontractor payrolls. (Id. at 10-11.) In particular, Dick Corporation contends that it was not until Plaintiffs' Opposition to Dick Corporation's Motion to Alter or Amend Judgment that it learned for the first time that Plaintiffs were alleging that Dick Corporation failed to maintain adequate records with respect to Capform and that this should trigger the Laborers' Pension Fund burden-shifting framework. (Id. at 14.) Because it was not permitted to file a Reply due to an expedited briefing schedule, Dick Corporation argues that it should now be afforded an opportunity to respond to such an argument and provide the Capform subcontractor payrolls to avoid summary judgment on this portion of the Union trade jurisdiction damages dispute. (Id. at 15.)

Plaintiffs respond that Dick Corporation has failed to provide any basis for the Court to reconsider its damages judgment under Rule 54(b) and that it should not be permitted to supplement the record with previously available evidence that was not provided despite ample opportunities to do so. (Pls.' Opp'n [77].) Plaintiffs assert that Dick Corporation failed to produce the payroll records for Capform even though it had those records in its possession, was specifically requested to produce ...

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