Opinion
No. 01 C 9382
July 19, 2002
MEMORANDUM OPINION AND ORDER
Roger Hack was allegedly employed by McInerney-Miller Brothers, Inc. (Brothers) during a period that included July 1985 through March 1987. According to plaintiffs, Brothers was required to report Hack's hours during that period and to pay pension contributions, and it failed to do so. It now sues to recover ERISA contributions. Defendant moves for summary judgment. That motion is denied.
Things have changed since 1987. In 1999 Brothers contributed its assets and its name, among other things, to MMB, L.L.C. (MMB), and also assigned some liabilities, and Brothers largely went out of business. It is MMB that now operates the business and, defendant claims, if plaintiffs have a claim they should pursue it against MMB as the successor in interest. But plaintiffs do not sue David and Janelle, Inc. as a successor in interest. Rather, David and Janelle, Inc. is a name change of Brothers, although it is now a very skinned-down Brothers. The alleged failure to contribute occurred on Brothers' watch and that liability, we surmise, was not assumed by MMB. Any liability is that of David and Janelle, Inc., as it is what is left of Brothers.
Defendant also contends the suit is barred by the statute of limitations and by laches. The limitations period is, however, ten years, Central States, Southeast and Southwest Areas Pension Fund v. Jordan, 873 F.2d 149 (7th Cir. 1989), and this circuit follows the discovery rule, Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir. 1991). The plaintiffs rely upon the employer's self-reporting and, since these hours were not reported, plaintiffs represent that it was unaware, and could not have become aware, of the claim until Hack raised the matter in 1995. The suit is therefore within the limitations period. But what about laches? Plaintiffs argue that defendant must show that it reasonably relied upon a plaintiff's failure to file suit and that, based on the assumption that the plaintiffs would not sue, the defendant altered its position in a detrimental manner. That is, certainly, one formulation of the laches concept, but not the only one. Another is an unreasonable delay in pressing one's rights that prejudices the defendant, and that prejudice includes loss of evidence and an increase in damages. Cook v. City of Chicago, 192 F.3d 693 (7th Cir. 1999). Here plaintiffs waited more than six years to bring suit after being advised of the possible claim. Defendant, in argument, contends that records destroyed after the 1999 transaction would have showed Hack was a supervisor (at less than $8 per hour?). And there has been some increase in damages because of subsequent interest and, therefore, an enhanced penalty. But argument is not a substitute for a specific record of prejudice, and that has yet to be provided.
The amount involved is not very much We suggest to the parties that they resolve this matter without further expenditure of time and effort.