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03-3360 Laborers’ Pension Fund v. RES Environmental Services, Inc.

By: dmc-admin//August 2, 2004//

03-3360 Laborers’ Pension Fund v. RES Environmental Services, Inc.

By: dmc-admin//August 2, 2004//

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“Here, the Funds assert that RES kept no contemporaneous time records reflecting the type of work performed, the date the work was performed, or the work location. The Funds claim that this deficiency in record-keeping prevented the Funds’ auditors from accurately determining the amount and type of work performed by RES employees. As the district court found, RES has not submitted any documents to contradict the Funds’ assertions nor come forward with any evidence setting forth the hours worked on covered projects, or the laborers who were working on those projects.

“Given the deficiency in records, to prevent summary judgment RES is ‘obliged to explain why its payments to the [F]unds are nonetheless proper.’ Id. at 264. On the issue of employees performing non-covered work, the Stewart affidavit states: ‘It has been my personal experience that the accounting firms who perform audits to verify the amount of contributions that may be owed regularly include employees and hours that are not covered by the [CBA].’ The affidavit later identifies five employees and states that they ‘performed work not covered by the [CBA].’ There is no specific information supporting these generalized and conclusory allegations. Indeed, the affidavit fails to introduce any factual assertion to dispute the audit’s findings. RES argues that the district court inappropriately found the Stewart affidavit to be insufficient evidence because it is an affidavit—RES misses the point. The Stewart affidavit is insufficient to prevent summary judgment because it provides no information raising an issue of fact. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990) (’The object of [summary judgment] is not to replace conclusory allegations of a complaint or answer with conclusory allegations of an affidavit.’). Accordingly, summary judgment was properly granted to the Funds on this issue.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Hibbler, J., Flaum, J.

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