United States District Court, E.D. Michigan, Southern Division
BRICKLAYERS PENSION TRUST FUND METROPOLITAN AREA, et al., Plaintiffs,
E&R MASONRY CONSTRUCTION, INC. et al., Defendants.
ORDER GRANTING PLAINTIFFS' MOTION FOR FINAL
JUDGMENT (DOCUMENT NO. 79)
STEPHEN J. MURPHY, III United States District Judge.
the Trustees of the Bricklayers Fringe Benefit Funds, filed
suit again Defendants E&R Masonry Construction, Inc.,
Brick Masonry, Inc., BMC Masonry, Inc Roberto Sanchez, Efrain
Sanchez, Ulices Sanchez, and Elena Sanchez for unpaid fring
benefits, breach of fiduciary duties under the Employee
Retirement Income Security Act (ERISA), and violations of the
Michigan Building Contract Fund Act. The Court granted part
and denied in part Plaintiffs' motion for summary
judgment and held the following: BM is the alter ego of Brick
and E&R; all three companies must submit to an audit to
determine the amounts owed under the Collective Bargaining
Agreement; and all three companies are liable on the amounts
owed as revealed in the audits. Order, ECF No. 71. The Court
withheld judgment, however, on the individual liability of
Roberto, Efrain, and Ulice Sanchez pending the outcome of the
audit, which is now complete. Id. at 15. In the
matter before the Court, the Plaintiffs move for final
judgment against the Defendants. Mot., EC No. 79. For the
reasons stated below, the Court will grant the motion.
ask the Court to impose judgment in the amount indicated by
the audit. See Aff., ECF No. 79-2. As stated in the
Court's earlier grant of summary judgment, Defendants
E&R, Brick, and BMC are liable for the amounts revealed
by the audit. In addition, the Court finds Plaintiffs'
requests for attorney fees reasonable and will grant the
dispute the results of the audit. Resp. 10, ECF No. 80. Apart
from their assertion, however, they offer nothing to show the
Court a specific, factual inaccuracy in the report. Without
more, Defendants' conclusory - and unsupported -
statement challenging the accuracy of the audit is
Defendants argue that they should be entitled to more time
for discovery to "cross-examine" the audit.
Id. Defendants received a copy of the audit sometime
in late April or early May and filed a response on May 31,
2016. See Email, ECF No. 80-1; Resp., ECF No. 80.
Defendants had at least 28 days to examine the audit.
Defendants do not point to a single, specific, factual
inaccuracy in the audit. Defendants do not explain what
discovery would accomplish at this point, or what they seek
to discover. Accordingly, the Court will enter judgment
against the Defendants E&R, Brick, and BMC for the
amounts revealed in the audit, and for the attorney fees
requested by Plaintiffs.
argue that Roberto, Efrain, and Ulices Sanchez are
individually liable for the judgment against E&R, Brick,
and BMC as fiduciaries under ERISA. Mot. 6, ECF No. 79; Reply
3-4, ECF No. 83. Defendants argue, however, that to hold
individual Defendants personally liable, Plaintiffs must
first "pierce the corporate veil." Resp 9, ECF No.
matter of law, Defendants are incorrect. Plaintiffs do not
need to pierce the corporate veil to hold individual
Defendants personally liable under ERISA. Trs. of Mich.
Reg'l Council of Carpenters Emp. Benefits Fund v. Accura
Concrete Walls, Inc., 408 F.Supp.2d 370, 373-74 (E.D.
Mich. 2005). Instead, Plaintiffs need only show that Roberto,
Efrain, and Ulices Sanchez breached a fiduciary duty to make
contributions to the fringe benefit funds.
person who exercises any discretionary authority or control
respecting management or disposition of plan assets has a
fiduciary duty under ERISA. 29 U.S.C. § 1002(21)(A). And
"any person who is a fiduciary and breaches a fiduciary
duty shall be personally liable to make good to such plan any
losses to the plan resulting from such breach." Trs.
of Mich., 408 F.Supp.2d at 374. (quotations omitted).
Additionally, an ERISA fiduciary is personally liable for a
breach of fiduciary duty "for using money owed under
certain ERISA Funds to pay the defendant corporation's
other creditors." Id. at 373-74
have established that Roberto, Efrain, and Ulices Sanchez had
discretionary control over the assets of E&R, Brick, and
BMC. See Elena Sanchez Dep. 6:2-18, 7:2-9, 10:7-17,
ECF No. 54-4 (acknowledging the parties' ownership of the
companies); 2011 Tax Form, ECF No. 54-5 (Efrain and Elena
Sanchez claiming ownership of Brick Masonry); 2012 Tax Form,
ECF No. 54-5 (Efrain and Elena Sanchez claiming ownership of
Brick Masonry); Ulices Sanchez Dep. 10:4-5, 10:20-11:1
(stating that Robert Sanchez owns E&R Masonry, and that
Efrain used to be co-owner), 20:23-25 (acknowledging
ownership of BMC); Notice of Furnishing, ECF No. 54-8 (Ulices
Sanchez signing notice as "Office Manager" of
Brick); BMC Art. of Incorp., ECF No. 54-9 (naming Ulices
Sanchez as incorporator); Efrain Sanchez Dep. 9:8-13:18
(acknowledging initial ownership of E&R), 13:21-15:10
(acknowledging ownership of Brick), Brick Art. of Incorp.,
ECF No. 54-14 (naming Roberto Sanchez and Efrain Sanchez as
incorporators); Roberto Sanchez Dep. 9:1-2 (acknowledging
ownership of E&R), ECF No. 54-17; E&R Art. of
Incorp., ECF No. 54-18 (naming Roberto Sanchez and Efrain
Sanchez as incorporators).
Roberto, Efrain, and Ulices Sanchez had discretionary control
over the assets, they also had a fiduciary duty and are thus
individually liable for the failure of the alter-ego
companies E&R, Brick and BMC to make required payments
under ERISA. The Court will therefore hold Roberto Sanchez,
Efrain Sanchez, and Ulices Sanchez jointly and severally
liable for the judgment against E&R, Brick, and BMC.