United States District Court, District of Columbia
SERVICE EMPLOYEES INTERNATIONAL UNION NATIONAL INDUSTRY PENSION FUND, et al., Plaintiffs,
ROSEEN REALTY CORP., Defendant.
N. MCFADDEN UNITED STATES DISTRICT JUDGE
suit, the Service Employees International Union National
Industry Pension Fund and its Trustees (the Fund) seek unpaid
pension fund contributions from Roseen Realty Corporation
(doing business as the Arnold Walter Nursing Home) under the
Employee Retirement Income Security Act. The Fund claims that
Arnold Walter owes $29, 830.53 in contributions and interest,
plus attorney's fees and costs. Arnold Walter asserts
that the Fund's calculations for both amounts are
unreliable. For the reasons explained below, I find that no
genuine dispute exists as to any material fact, and will
enter summary judgment for the Fund.
Fund seeks unpaid contributions from Arnold Walter for a
period of seventeen months, from July 2015 through November
2016. Decl. of Kisha Smith, Ex. A, Mot. Summ. J. (Smith
Decl.). Arnold Walter is obligated to pay a base
rate of contributions pursuant to a collective bargaining
agreement (CBA), which was renewed by a binding arbitration
opinion and award "for the period of March 1, 2012
through June 30, 2018." Compl. ¶ 10. Under the CBA,
Arnold Walter must pay 2.75% of eligible employees' gross
earnings, Compl. ¶ 11, and submit monthly remittance
reports that "contain the names of each covered employee
and the number of compensable hours for each employee during
the reporting month." Compl. ¶ 15.
of the base rate, Arnold Walter must pay (1) interest on
delinquent contributions "at the rate often percent
(10%) per annum, " (2) liquidated damages (calculated as
the greater of interest owed or "20% of the delinquent
contributions, "), and (3) attorney's fees and
costs. Compl. Ex. 5 at 8-9. These obligations are spelled out
in the Fund's Collections Policy,
id.9 and authorized by the Fund's
Agreement and Declaration of Trust (Trust Agreement), Compl.
Ex. 4, Sec. 3.2, both of which are explicitly incorporated
into the CBA. Compl. Ex. 1, Art. 30, Sec. 30.4 ("The
Employer hereby agrees to be bound by the provisions of the
Agreement and Declaration of Trust establishing the Fund ...
and by all resolutions and rules adopted by the Trustees ...
including collection policies, receipt of which is hereby
acknowledged."). Under the Collections Policy,
attorney's fees must be "assessed ... at a
reasonable hourly rate (which rate shall be no less than the
hourly rate charged to the Fund for such services) for all
time spent by legal counsel in collection efforts."
Compl. Ex. 5 at 8.
Employee Retirement Income Security Act (ERISA) "makes a
federal obligation of an employer's contractual
commitment to contribute to a multiemployer pension
fund." Flynn v. R.C Tile, 353'F.3d 953, 958
(D.C. Cir. 2004). The Fund constitutes a "multiemployer
plan." Compl. ¶5.
Every employer who is obligated to make contributions to a
multiemployer plan under the terms of the plan or under the
terms of a collectively bargained agreement shall, to the
extent not inconsistent with law, make such contributions in
accordance with the terms and conditions of such plans or
29 U.S.C. § 1145. If judgment is awarded for a violation
of this section, "the court shall award the plan"
the exact sort of relief that the Fund seeks in this case:
"the unpaid contributions . . . interest on the unpaid
contributions ... liquidated damages ... reasonable
attorney's fees and costs ... and ... other legal or
equitable relief as the court deems appropriate." 29
U.S.C. § H32(g)(2).
Walter also must pay a surcharge to comply with the Pension
Protection Act of 2006 (the PPA), which is an amendment to
ERISA. Under the PPA, a multiemployer benefit plan that is in
"critical status" must "adopt and implement a
rehabilitation plan, " 29 U.S.C. § 1085(a)(2), and
can impose supplemental contributions that are
"reasonably necessary to emerge from critical
status." Id. at § 1085(e)(1). Failure to
pay the rehabilitation plan's extra contributions
"shall be treated as a delinquent contribution under
section 1145 of this title [ERISA] and shall be enforceable
as such." Id. at § lO85(e)(3)(C)(iv).
Fund calculates that Arnold Walter owes $29, 830.53 in unpaid
base and supplemental contributions, along with interest on
unpaid amounts and liquidated damages. Mot. Summ. J. 7; Smith
Decl. ¶ 28. The Fund reached this total based on the
remittance reports that Arnold Walter submitted, taking
"the hours reported by the Defendant itself and
multiplying] it by the base rate for contributions ... and
the rate of supplemental contributions as required by the
Fund's Rehabilitation Plan." Mot. Summ. J. 6-7;
Smith Decl. ¶ 6. The difference between the amount due
and the amount paid is the underpayment, from which interest
and liquidated damages can be calculated. Smith Decl.
¶¶ 26-27, Ex. A (dated March 15, 2017); PL's
Statement of Mat. Facts Not in Dispute ¶ ("interest
[is] calculated through March 15, 2017"). The Fund has
submitted a chart detailing the month-by-month totals, in
lieu of providing the actual remittance reports and financial
records. Id. at 8.
Fund also claims that Arnold Walter owes a total of $11,
217.00 in attorney's fees and costs. Decl. of Andrew Lin,
Mot. Summ. J. (Lin Decl.) (documenting $6, 950.00 in
attorney's fees and $510 in costs); Supp. Decl. of Andrew
Lin (Supp. Lin Decl.) (documenting $4, 267.00 in additional
attorney's fees). All told, the Fund asks for summary
judgment in the amount of $41, 047.53.
response, Arnold Walter submits an affidavit from one of its
attorneys, who asserts that "[t]o the extent Plaintiffs
believe required contributions have not been made, the
Pension Fund has improperly included .. . certain individuals
who have not met the required threshold criteria, "
because "only employees who have been employed at least
ninety (90) days are eligible to have contributions made on
their behalf." Decl. of David Jasinksi ¶¶ 6,
10 Def.' s Opp. Mot. Summ. J. The declaration also says
that "on a monthly basis, Arnold Walter determines how
much it owes in pension fund contributions and creates a
remittance report listing the pension fund contribution
amounts." Id. ¶ 7. "These remittance
reports along with payment... are then remitted to the
Pension Fund." Id. ¶ 8. Mr. Jasinski
alleges that "Arnold Walter has paid ... for individuals
who . . . met the applicable threshold eligibility criteria,
" id. ¶ 9, but that "Plaintiffs'
inconsistent calculations of alleged amounts owed have
muddied the waters .. . such that determining any actual
amounts payable to the Pension Fund has not been
possible." Id. ¶ 11. Finally, Arnold
Walter asserts that in some respects the Fund's attorneys
have billed "an excessive and unreasonable amount of
time." Opp. 6; see also Jasinski Decl. 3.
prevail on a motion for summary judgment, a ¶movant must
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(a); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986); Celotex Corp v. Catrett,477 U.S. 317, 322
(1986). A factual dispute is material if it could alter the
outcome of the suit under the substantive governing law, and
genuine "if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248. "[A] party seeking
summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of the [record] which it believes
demonstrate the absence of a genuine issue of material
fact." Celotex, 477 U.S. at ...