United States District Court, D. Maryland
R. ALEXANDER ACOSTA, Acting Secretary of Labor, United States Department of Labor. Plaintiff,
CARLOS CALDERON, et al., Defendants.
Copperthite United States Magistrate Judge
Alexander Acosta ("Plaintiff'), Acting Secretary of
Labor, moves this Court for summary judgment in favor of
Plaintiff and against Defendants Carlos Calderon and C.R.
Calderon Construction Company ("Defendants")
("Plaintiffs Motion") (ECF No. 23). Plaintiff seeks a
ruling from the Court that Defendants, in their capacity as
fiduciaries of the Contractors & Employees 401(k) Profit
Sharing Plan (the "Plan"), failed to forward
employee contributions and remit mandatory prevailing wage
employer contributions to the Plan in violation of Title I of
the Employee Retirement and Income Security Act of 1974
("ERISA"), as codified and amended in 29 U.S.C.
§ 1001, et seq. Defendants filed an opposition
to Plaintiffs motion for summary judgment and cross-motion
for summary judgment in favor of Defendants and against
Plaintiff ("Defendants' Cross-Motion") (ECF No.
considering the motions, and responses thereto (ECF Nos. 23,
29, 32), the Court finds that no hearing is necessary.
See Loc.R. 105.6 (D.Md. 2016). In addition, having
reviewed the pleadings of record and all competent and
admissible evidence submitted by the parties, the Court finds
that there is no genuine issue of material fact as to the
claims asserted. For the reasons that follow, the Court will
GRANT IN PART AND DENY IN PART Plaintiffs Motion for Summary
Judgment (ECF No. 23) and GRANT IN PART AND DENY IN PART
Defendants' Cross-Motion for Summary Judgment (ECF No.
C.R. Calderon Construction, Inc. ("CRC"), a
Maryland corporation, was founded in 1994 by Defendant Carlos
Calderon ("Calderon") and his wife Ana Calderon.
Calderon is the president and part-owner of CRC. During the
time period relevant to this action. CRC was engaged in the
construction business providing drywall and ceiling
installation services on both public and private properties.
As a subcontractor for drywall and ceiling work, CRC bid for
jobs from general contractors and owners. The submitted bids
included all labor, material, and equipment costs associated
with a particular job. In calculating its labor costs for a
job, CRC typically employed the prevailing wage scale.
about January 1, 2005, CRC adopted the Plan. See ECF
No. 23-11. The purpose of the Plan was to provide benefits
for the exclusive benefit of plan participants-the employees
of the CRC-and their beneficiaries. Under the terms of the
Plan, participants were permitted to contribute a portion of
their compensation in the form of elective salary deferrals
to be deducted and withheld from employee salaries and
remitted to the Plan. The Plan also required that the
employer, CRC, make mandatory prevailing wage employer
contributions. The Plan was to be primarily funded by
elective employee salary deferrals and mandatory employer
prevailing wage contributions.
following outlines CRC's process for handling the funds
associated with its employee benefit plan. CRC first
submitted an invoice to the owner or general contractor of a
specific job. Once the invoice was approved, CRC received a
single check, for the total billed amount. Notably, neither
the invoices CRC provided to contractors nor the checks
issued back to them distinguished between labor, material,
and equipment costs. Upon receipt of a check from a
contractor, CRC would deposit the payment received into its
designated operating account. Funds from CRC's operating
account were then transferred to CRC's designated payroll
account to cover employee payroll. Thereafter, any remaining
available operating account funds were used to fund CRC's
employee benefit plan.
underlying material facts, which are not disputed by the
parties, tend to establish that, from January 2012 through
December 2012, CRC deducted $35, 235.00 from participant
compensation for employee contributions which subsequently
were not remitted into the Plan. In addition, from January
2012 through December 2013, CRC failed to collect and remit
to the Plan $346, 523.12 in mandatory prevailing wage
April 1, 2016, Plaintiff initiated this action pursuant to
ERISA, 29 U.S.C. § 1001 et seq. See ECF No. 1
("the Complaint"). The Complaint alleged that
Defendants, in their capacity as fiduciaries of the Plan,
failed to forward employee contributions and remit mandatory
prevailing wage employer contributions to the Plan in
violation of Title 1 of ERISA.
March 13, 2017, Plaintiff filed Plaintiffs Motion (ECF No.
23) seeking summary judgment on his breach-of-fiduciary-duty
claims against Defendants pursuant to ERISA. On April 12.
2017, Defendants filed Defendants' Cross-Motion (ECF No.
29) seeking summary judgment on Plaintiffs ERISA claims
against them. On May 10, 2017, Plaintiff filed a reply to
Defendants' Cross-Motion (ECF No. 32). This matter is now
fully briefed and the Court has reviewed each party's
cross-motion for summary judgment. For the foregoing reasons
and pursuant to Federal Rule of Civil Procedure 56(d),
Plaintiffs Motion (ECF No. 23) is granted in part and denied
in part and Defendant's Cross-Motion (ECF No. 29) is
granted in part and denied in part.
to Rule 56, a movant is entitled to summary judgment where
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact.
Fed.R.Civ.P. 56(a): see Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). The Supreme Court has clarified
that not every factual dispute will defeat a motion for
summary judgment but rather, there must be a genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-248 (1986) C'[T]he mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine issue of material fact."
(emphases in original)). An issue of fact is material if,
under the substantive law of the case, resolution of the
factual dispute could affect the outcome. Id. at
248. There is a genuine issue as to material fact "if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Id.; see also
Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330
(4th Cir. 2012). On the other hand, if after the court has
drawn all reasonable inferences in favor of the nonmoving
party, "the evidence is merely colorable, or is not
significantly probative, summary judgment may be
granted." Anderson, 477 U.S. at 249-50
(internal citations omitted).
party seeking summary judgment bears the initial burden of
either establishing that no genuine issue of material fact
exists or that a material fact essential to the non-movanf s
claim is absent. Celotex Corp., 477 U.S. at 322-24.
Once the movant has met its burden, the onus is on the
non-movant to establish that there is a genuine issue of
material fact. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp.,475 U.S. 574, 586 (1986). In order to meet
this burden, the non-movant "may not rest upon the mere
allegations or denials of [its] pleadings, " but must
instead "set forth specific facts showing that ...