# Plumbers' Pension Fund, Local 130, U.A. v. Republic Piping Systems, Inc.

> District Court, N.D. Illinois · May 30, 2025

URL: https://www.frixlaw.com/law-library/cases/11062923

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** May 30, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Plumbers’ Pension Fund, Local 130, U.A.,
et al.,

Plaintiffs,
No. 20 CV 774

v.
Judge Lindsay C. Jenkins

Republic Piping Systems, Inc., et al.,

Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiffs, a collection of benefit funds along with Plumbers’ Local Union 130,
brought this suit against Republic Piping Systems, Inc., John DiFoggio, and Danielle
Duarte, under Section 502 of the Employee Retirement Security Act, 29 U.S.C.
Section 1132, 1145, (“ERISA”) and under Section 301 of the Labor Management
Relations Act, 29 U.S.C. § 185, (“LMRA”). The Funds seek to recover fringe benefit
contributions allegedly due to them by Republic.
Before the Court are the parties’ cross-motions for summary judgment, [dkt.
179 (Plaintiffs); dkt. 182 (Defendants)], along with Defendants’ related Motion for
Sanctions [dkt. 185]. For the reasons that follow the motion for sanctions is denied,
and the motions for summary judgment are both granted in part and denied in part.
I. Background
Unless noted, all facts recounted herein are undisputed either due to the
parties’ agreement or their failure to cite evidence refuting the fact asserted in the
opposing party’s Rule 56.1 statement. The Court does not include factual assertions
that are unsupported by the parties’ citations to record materials. See L.R. 56.1(a). In
ruling on cross motions for summary judgment, the Court “draw[s] all reasonable
inferences in favor of the party against whom the motion at issue was made.” Chicago
Tchrs. Union v. Bd. of Educ. of the City of Chicago, 14 F.4th 650, 654 (7th Cir. 2021)

(citation and internal quotation marks omitted). However, the Court only relays facts
that are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). That is,
“facts that might affect the outcome of the suit.” Id.
Plumbers’ Pension Fund, Local 130, U.A., Plumbers’ Welfare Fund, Local 130,
U.A., and Plumbers’ Retirement Savings Plan Fund, Local 130, U.A. (collectively,
“Funds”) receive contributions from numerous employers under Collective

Bargaining Agreements (“CBAs”) between employers and the Chicago Journeymen
Plumbers’ Local Union 130, U.A. (“Union”). [Dkt. 192 ¶ 1.] The Funds are multi-
employer plans per 29 U.S.C. § 1002, and the Union is a voluntary association and
labor organization pursuant to both the National Labor Relations Act and the LMRA.
[Id. ¶¶ 2–3.]
The Funds previously received contributions from U.S. Plumbing & Sewer, Inc.
(“U.S. Plumbing”) which had a CBA with the Union. [Id. ¶ 4.] U.S. Plumbing, which

incorporated in Illinois in 2009, performed commercial, residential, and industrial
plumbing work. [Id. ¶¶ 5–6.] Defendant John DiFoggio was a 50% shareholder of U.S.
Plumbing as well as its President and Director. [Id. ¶¶ 7, 10.] U.S. Plumbing’s
business address was 8400 Wilmette Ave., Darien, IL 60561, which was a garage
leased by DiFoggio; but it also used DiFoggio’s address on Walter Street in Lemont,
Illinois. [Id. ¶¶ 8–9.] DiFoggio owned two cargo vans which U.S. Plumbing used. [Id.
¶ 11.]
The CBA between U.S. Plumbing and the Union contains several provisions

relevant to this dispute. Section 14.1, entitled “Employer Entities Bound,” provides:
This Agreement is binding upon Employer regardless of whether he or
it changes the name or address of his or its business and upon any other
business entity within the trade and territorial jurisdiction of the Union
which is owned, managed, controlled and/or operated by the Employer
or its principals or any of them. This paragraph is intended to apply to
the scope of work covered by this Agreement and shall not be construed
as adding to the scope of such work.
[Id. ¶ 12.] The geographic jurisdiction of the Union set forth in the CBA with U.S.
Plumbing covers the “City of Chicago, Illinois, Bureau, Cook, DeKalb, DuPage,
Grundy, and Woodford counties, Illinois.” [Id. ¶ 14.]
The Union set hourly rates of pay for journeymen and apprentice plumbers
along with hourly contribution requirement to the Funds. [Id. ¶ 15.] To each fund,
the employer was required to contribute for each employee covered by the Agreement;
for some Funds, contributions were mandatory for apprentices as well. [Id.] For
example, during the relevant time period, a journeyman plumber could expect to
receive between $52.00 and $56.80 per hour in take-home pay and fringe benefit
contributions totaling upwards of $33 per hour. [Id. ¶¶ 16–23.]1

1 For these factual assertions, Defendants explained in their response to Plaintiffs’ 56.1
statement that they “lack specific knowledge to either admit or deny and therefore deny the
same.” [Id. ¶¶ 16–23.] Local Rule 56.1 requires the party opposing summary judgment to
“admit or deny each paragraph and cite to supporting evidence.” Hinko v. Schindler Elevator
Corp., 2008 WL 2168855, at *1 (N.D. Ill. May 23, 2008). Defendants failed to support their
denial of these allegations with evidence. As Plaintiffs’ assertion is supported by the evidence
they cite in their 56.1 statement, the Court deems these facts as admitted. Id.
Fringe benefits—like health insurance and retirement benefits offered by the
Funds to Union plumbers—are part of plumbers’ wages. [Id. ¶ 25.] The CBA gives
the Union the right to inspect Employers’ payroll records to determine whether the

employer is complying with the CBA provisions relating to the contract rate of wages
and union dues deductions. [Id. ¶ 24.] As intended third-party beneficiaries of the
CBA, the Funds also have the power to enforce the CBA’s contribution and auditing
provisions. [Id. ¶ 25.]
On March 8, 2019, after learning U.S. Plumbing was not timely paying its
workers, the Union removed its workers from U.S. Plumbing’s jobs. [Id. ¶ 27.]

Pursuant to the CBA, Local 130 Union members could only return to work when U.S.
Plumbing remedied its arrearage. [Id. ¶ 29.] In March 2019, Union Business Agent
James Mansfield observed three non-Local 130 members performing work on a U.S.
Plumbing jobsite. [Id. ¶ 31.] In response, the Union issued a 5-day Notice Letter to
U.S. Plumbing to withdraw all Union employees for failure to pay wages and benefits
to employees covered by the CBA. [Dkt. 191 ¶ 1.] Mansfield returned on March 14,
2019 and found two non-Local 130 plumbers, plus DiFoggio and Michael Leuzzi

(DiFoggio’s partner in U.S. Plumbing), performing and supervising work covered by
the CBA. [Dkt. 192 ¶ 32; dkt. 191 ¶¶ 2–3.] As of that date, U.S. Plumbing had not
remedied its arrearage and paid all its Local 130 workers in full. [Dkt. 192 ¶ 33.]
On March 21, 2018, the Board of Trustees of the Plaintiff Welfare Fund held a
meeting and found that DiFoggio and Leuzzi had engaged in prohibited employment
by continuing to work for U.S. Plumbing after the Union enforced its 5-day Notice.
[Dkt. 191 ¶¶ 2–4.] As a result, the Fund terminated DiFoggio and Leuzzi’s welfare
coverage under its plan on April 1, 2019. [Id. ¶ 4.]
On April 4, 2019, the Union’s Joint Arbitration Board convened a hearing on

charges against U.S. Plumbing for underpaying its Local 130 member employees, for
employing non-Local 130 members to perform plumbing work, and for Leuzzi and
DiFoggio performing covered work themselves in violation of the CBA’s notice of
withdrawal to its members. [Dkt. 192 ¶ 34.] The Arbitration Board found U.S.
Plumbing guilty and imposed a $50,000 fine. [Id. ¶ 35.] U.S. Plumbing did not
challenge the findings and never paid the fine assessed. [Id. ¶¶ 36–37.]2 U.S.

Plumbing never provided timely notice of intent to terminate the CBA. [Id. ¶ 26.]
U.S. Plumbing filed for bankruptcy on August 12, 2019. [Id. ¶ 65.] At the time,
U.S. Plumbing had not completed its payments due to the Funds pursuant to a
settlement agreement covering fringe benefit contributions, liquidated damages, and
interest. [Id. ¶ 68.] The bankruptcy case was closed, and U.S. Plumbing was
liquidated on January 16, 2020. [Id. ¶ 71.] The Illinois Secretary of State then
involuntarily dissolved U.S. Plumbing on November 10, 2020. [Id. ¶ 72.] On

November 6, 2023, this Court entered an amended judgment in the amount of

2 Defendants denied Plaintiffs’ Statement of Fact #37 but cited no evidence
contravening Plaintiffs’ assertion. The party opposing summary judgment must do more.
Hinko, 2008 WL 2168855, at *1. The fact is deemed admitted.
$74,372.16 against DiFoggio for amounts covered by the settlement agreement. [Id.
¶ 69.]3 The current balance is $68,372.16. [Id. ¶ 70.]4
In the meantime, DiFoggio started a new company. He incorporated Republic

Piping Systems, Inc. (“Republic”) on June 19, 2019 in Illinois, and the company
received its Plumbing Contractor’s License in November 2019. [Id. ¶¶ 38–39, 57.]
Republic is a business entity within the trade and territorial jurisdiction of the Union.
[Id. ¶ 49.] DiFoggio is Republic’s sole officer, sole shareholder, sole director and is
“pretty much in charge of everything” at Republic. [Id. ¶¶ 50–52, 120.] Republic never
held an annual meeting; has no corporate book or seal; and has never paid dividends.

[Id. ¶¶ 121–124.]
At the time DiFoggio started Republic, he knew U.S. Plumbing faced a lawsuit
from the Plaintiff Funds for delinquent contributions and knew U.S. Plumbing owed
the Funds money. [Id. ¶¶ 40–41.] He also understood the company was “in a lot of
trouble” and filing for bankruptcy. [Id. ¶ 42.] Republic’s purpose was to allow
DiFoggio “to continue to be a plumber and an owner of a plumbing company after
U.S. Plumbing could no longer be in business.” [Id. ¶ 81.]

Republic, like U.S. Plumbing, performs commercial, residential, and industrial
plumbing work. [Id. ¶ 43.] It also uses the same addresses as U.S. Plumbing in Darien
and Lemont. [Id. ¶¶ 44–45.] The Lemont address is DiFoggio’s former home. [Id.
¶ 46.] Republic uses the same registered agent and same accountant as U.S

3 Defendants dispute this statement of fact but again fail to cite specific evidentiary
material refuting Plaintiffs’ assertion. The Court deems this fact admitted.
4 Defendants challenge this assertion as well but cite no evidence in support. The Court
deems the fact admitted.
Plumbing. [Id. ¶¶ 47, 66–67.] DiFoggio is also the “IDPH licensed plumber” for
Republic, just as he was for U.S. Plumbing. [Id. ¶¶ 48.]5 Republic uses some of the
same equipment that U.S. Plumbing did, including two Chevy Express Cargo Vans

and DiFoggio’s plumbing tools. [Id. ¶¶ 54–55.] On its website, Republic claims to have
been in business for more than 20 years. [Id. ¶ 58.]
On or around May 2, 2019, about a month before Republic was incorporated,
DiFoggio signed a proposal on behalf of Republic for a project entitled: Meet Me on
Meachum. [Id. ¶ 56.] DiFoggio signed a letter of intent for the same project using U.S.
Plumbing’s letterhead on August 6, 2019. [Id. ¶ 59.] The letter of intent indicated

U.S. Plumbing had been awarded the project. [Id. ¶ 63.] The same day, the general
contractor for the project submitted a Project Information Sheet to the Village of
Schaumburg indicating U.S. Plumbing would be the plumbing subcontractor on the
project. [Id. ¶ 60.] On March 13, 2020, Republic received a $31,500 check for its work
on the Meet Me on Meachum project. [Id. ¶ 64.]
Republic hired an apprentice plumber, Brandon Atkins, in March or April
2021. [Id. ¶¶ 74, 76.] DiFoggio was his only supervisor. [Id. ¶ 75.] When Atkins

started working for Republic he earned $25.00 per hour with no fringe benefits. [Id.
¶ 76.] When he left in August 2023, he was earning $28.00 per hour without fringe
benefits. [Id. ¶ 77.] From April 2021 through August 2023, Republic paid its
journeyman plumbers between $30.00 and $35.00 per hour in take-home pay; it did
not provide health insurance or retirement benefits. [Id. ¶¶ 78–79.] Republic has

5 Defendant also denied Plaintiffs’ Statement of fact #48, citing no evidence. For the
reasons already explained, this fact is deemed admitted as well.
never contributed to the Funds. [Id. ¶ 80.] It disclaims any affiliation with the Union
or obligation to contribute to the Funds. [Dkt. 191 ¶ 9.]
Republic’s only bank account is at Marquette Bank. [Dkt. 192 ¶ 82.] DiFoggio

had a personal bank account at Marquette which, at the time of his deposition in
August 2024, had a balance of roughly $200.00. [Id. ¶ 83.] DiFoggio and his girlfriend,
Danielle Duarte, have signatory authority for the accounts as well as debit cards for
the accounts. [Id. ¶¶ 84–85.] DiFoggio added Duarte to the Republic bank account
after she loaned him money to redeem his house from foreclosure. [Id. ¶¶ 87–88.]
DiFoggio explained that, in the event he died, he wanted Duarte to be able to recoup

the loans she made him. [Id. ¶ 88.]6 There were no formal loan agreements between
the two of them. [Id. ¶ 89.] Durate had no position with or ownership of Republic. [Id.
¶¶ 90–91.] Neither Duarte nor Republic received regular paychecks from Republic’s
business checking account. [Id. ¶ 92.]
DiFoggio repeatedly drew from Republic’s bank account to pay for vacations,
his children’s school tuition, personal vehicles, brand-name clothing, dinning at high-
end restaurants, gambling, and other personal expenses. [Id. ¶¶ 93–113.] Republic’s

articles of incorporation show that, at founding, the amount of paid-in capital was
$1.00. [Id. ¶ 115.] The initial $10,000.00 deposit into Republic’s bank account on June
27, 2019 consisted primarily of a loan from DiFoggio’s aunt. [Id. ¶ 116.] DiFoggio

6 Defendants deny Plaintiffs’ Statement of Fact #88 but, as before, cite no supporting
material. Plaintiffs’ statement of fact is supported by DiFoggio’s deposition testimony.
Therefore, the Court treats the fact as admitted.
needed the loan from his aunt because, at the time, he was “barely surviving”
financially. [Id. ¶ 118.]
II. Legal Standard

Summary judgment “is the ‘put up or shut up’ moment in a lawsuit, when a
party must show what evidence it has that would convince a trier of fact to accept its
version of events.” Wade v. Ramos, 26 F.4th 440, 446 (7th Cir. 2022) (quoting Schacht
v. Wis. Dept’ of Corr., 175 F.3d 497, 504 (7th Cir. 1999)). A party opposing summary
judgment must “set forth specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 250. A genuine issue of material fact exists if “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Id. at

248. On the other hand, summary judgment is proper if the nonmoving party “fails
to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Ellis v.
CCA of Tennessee LLC, 650 F.3d 640, 646 (7th Cir. 2011) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). The Court “may not make credibility
determinations, weigh the evidence, or decide which inferences to draw from the

facts; these are jobs for a factfinder.” Johnson v. Rimmer, 936 F.3d 695, 705 (7th Cir.
2019) (quoting Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003)).
III. Analysis
Before diving into the ERISA contribution claims at issue in the parties’
competing motions for summary judgment, the Court turns to Defendants’ motion for
sanctions based on discovery deficiencies. [Dkt. 195.]
A. Motion for Sanctions
Defendants move for sanctions arguing that Plaintiffs should be prohibited
from using, in support of their motion for summary judgment, evidence they failed to

properly disclose during discovery. Federal Rule of Civil Procedure 26(e)(1) provides
that a party that has made an initial disclosure under Rule 26(a) has a duty to
“supplement or correct its disclosure or response … in a timely manner if the party
learns … the disclosure … is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the other parties
during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1). Federal Rule of
Civil Procedure 37(c)(1) provides for penalties for failure to comply with Rule 26(e)(1):

the party cannot use the information it failed to disclose “unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1); see also Barnett v.
Menard, Inc., 851 F. App’x 619, 623 (7th Cir. 2021).
In September 2020, Plaintiffs made their Rule 26 disclosures listing several
individuals likely to have pertinent information. [Dkt. 185-2.] They never updated
their disclosure. [Dkt. 185.] During the course of litigation, Plaintiffs provided

answers to interrogatories, identifying people with knowledge in specific areas. [Id.]
In support of their summary judgment motion, though, Plaintiffs include declarations
from three people whose names were not included in their Rule 26 disclosures or in
answers to interrogatories: Christopher Anish, James Mansfield, and Brandon
Atkins. [Id. at ¶¶ 12–14.] They also support their summary judgment motion with
two documents not included in discovery. [Id. at ¶¶ 15–16.] Among other things,
Defendants argue that Plaintiffs should not be permitted to rely on this information.7
1. Christopher Anish

To understand the scope of the dispute, the Court begins with the first
challenged witness: Christopher Anish. Anish is the field representative for the
Union. [Dkt. 187 at 4.] At the time Plaintiffs made their Rule 26 disclosures, they
listed then-field representative Anthony Rottman. [Dkt. 185-2.] Anish took over
Rottman’s job in April 2023. [Dkt. 187 at 5.] While Plaintiffs never updated their Rule
26 disclosures, they included a declaration from Anish in support of an earlier filed
motion for partial summary judgment. [Id.] The Court ultimately struck that motion,

permitting the parties additional time to conduct discovery. [Id. at 3.] Defendants
never sought to take either Rottman or Anish’s deposition. [Id. at 4, 5.]
While Defendants challenge Plaintiffs’ use of Anish’s deposition, they admit
the vast majority of Plaintiffs’ Rule 56.1 statements of fact that rely on Anish’s
declaration. [Dkt. 192 ¶¶ 4, 13–15, 24–26, 68, 73.] As the Barnett court explained in
a slightly different context, by admitting most of the factual allegations from Anish,

defendants waived their objection. 851 F. App’x at 623. In Barnett, the plaintiff
opposed the defendant’s use of an exhibit that was not produced during discovery;

7 With respect to all three declarations, Defendants argue that Plaintiffs should be
prohibited from relying on them because they didn’t produce them in discovery. Not so. “Rule
56 contemplates the creation of affidavits in support of a party’s motion for summary
judgment and does not require that the party produce the affidavit in advance of filing its
motion.” L.W. v. United Skates of Am., Inc., 2019 WL 3946068, at *1 (S.D. Ind. Aug. 21, 2019);
see also Fed. R. Civ. P. 56(c) (discussing procedure for citing to declaration “made for purposes
of the motion only”).
however, the plaintiff “affirmatively stat[ed] in the pretrial order that he had no
objections to any of [defendant’s] exhibits.” Id. The Seventh Circuit found the district
court did not abuse its discretion by treating the admission as a waiver. Id. The Court

reaches the same conclusion here. Defendants’ complaint about Plaintiffs’ failure to
disclose Anish in an amended Rule 26 disclosure rings hollow when they agree with
most of Anish’s factual assertions.
Turning to the few factual assertions that Defendants challenge, in addition to
failing to support their denials with record evidence as required by Local Rule 56.1.
[dkt. ¶¶ 16–23, 70], the Court cannot conclude that Plaintiffs were obligated to

supplement their disclosure with respect to Anish. Thuet v. Bd. of Educ. of City of
Chicago, 2022 WL 17098223, at *2 (N.D. Ill. Nov. 21, 2022) (holding there is no duty
to update Rule 26 disclosures where the opposing party learns of potential witnesses
through another manner); Pryor v. City of Chicago, 2010 WL 431470, at *9 (N.D. Ill.
Feb. 1, 2010) (reaching the same conclusion where the potential witness’s name was
disclosed in the footnote of a motion to reconsider). In this case, the partial motion for
summary judgment made Defendants aware of Anish by attaching a similar

declaration. Fact discovery remained open for several months after the disclosure
giving Defendants sufficient time to take action.
Even if Plaintiffs had a duty to update their disclosures, any failure to do so
was harmless. Barnett, 851 F. App’x at 623. The relevant factors are “(1) the prejudice
or surprise to the party against whom the evidence is offered; (2) the ability of the
party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad
faith or willfulness involved in not disclosing the evidence at an earlier date.” David
v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003). As explained, given the prior
partial summary judgment motion, Anish’s declaration should not have been a

surprise; even if it was, Defendants could have filed a motion to reopen discovery in
order to take Anish’s deposition before responding to Plaintiffs’ summary judgment
motion; doing so would have cured any prejudice; and, because this case is still in a
pre-trial posture, Anish’s late disclosure would not disrupt trial. On the last factor,
bad faith, Defendants point to no convincing evidence. In sum, the relevant factors
weigh in favor of finding Plaintiffs’ use of Anish’s declaration to support their

summary judgment motion is harmless.
2. James Mansfield
James Mansfield is the Union Business Agent who enforced the 5-day Notice
issued to U.S. Plumbing and who testified at the Joint Arbitration Board hearing.
Plaintiffs did not include Mansfield on their Rule 26 disclosures. Defendants served
Plaintiffs with interrogatories, one of which asked Plaintiffs to identify everyone who
investigated “the Defendant at Plaintiff’s request.” [Dkt. 188-1 ¶ 7.] Plaintiffs listed

William Wilkins and Joseph Mondia but not Mansfield. [Id.]
Similar to Anish, Defendants admit the vast majority of Plaintiffs’ statements
of fact that rely on Mansfield’s declaration. In fact, there is only one assertion which
they deny: that U.S. Plumbing never paid any of the fines assessed by the Joint
Arbitration Board. [Dkt. 193 ¶ 37.]
Plaintiffs were not obligated to update their Rule 26 disclosures with respect
to Mansfield. As they point out, they produced in discovery arbitration documents
that reflected Mansfield’s role in investigating U.S. Plumbing. [Dkt. 187 at 6–7.]
When an opposing party is put on notice of a potential witness through the discovery
process, courts find no obligation to update Rule 26 disclosures. For example, in

Gutierrez v. AT&T Broadband, LLC, the Seventh Circuit agreed with the district
court that plaintiffs were put on notice of a potential witness with pertinent
information after another witness mentioned their name during a deposition. 382
F.3d 725, 732 (7th Cir. 2004). The Court emphasized that a party’s “obligation to
seasonally supplemental their Rule 26(a) disclosures” only arises when the
information has not been made known through the discovery process. Id.; see also

Pryor, 2010 WL 431470, at *9.
Here, Defendants specifically sought through discovery the arbitration
materials that mentioned Mansfield’s role in the Union’s investigation of U.S.
Plumbing. In addition, Defendants observed Mansfield’s testimony before the
Arbitration Board first-hand. A defendant cannot turn a blind eye to this type of
information only to complain later over a technicality.
3. Brandon Atkins

Brandon Atkins was a Republic employee and DiFoggio’s direct report. [Dkt.
192 ¶¶ 74–76.] Plaintiffs’ Rule 26 disclosures did not list Atkins by name; however, it
included as a category of potential witnesses, “[o]ther current or former employees of
U.S. Plumbing & Sewer, Inc., or Defendant who were employed by either entity
during the relevant period.” [Dkt. 185-2 at 3.] It took time for Plaintiffs to obtain
Atkins’ declaration, which they produced to Defendants immediately after receipt,
but on the eve of the close of discovery. [Dkt 187 at 51.] Even if Plaintiffs were
obligated to do more, Defendants waived their challenge by admitting every factual
assertion in Plaintiffs’ Statement of Facts that relies on Atkins’ declaration. Barnett,
851 F. App’x at 623.8

4. Exhibits
Defendants challenge the use of two exhibits Plaintiffs failed to produce in
discovery. [Dkt. 185 at 2.] The first, Exhibit L, is a collection of screenshots from
Republic’s website. The second, Exhibit R, are screenshots from another website
purporting to show that Leuzzi is now part of a cannabis dispensary venture.
Defendants argue they had no duty to disclose the website printouts because they
“can only be the handiwork of DiFoggio or persons directed by him.” [Dkt. 187 at 9.]

That answer is not compelling, particularly with respect to Exhibit R. The bigger
issue though is that, once again, Defendants admitted both of Plaintiffs’ statements
of fact that rely on these challenged exhibits. [Dkt. 192 ¶¶ 58, 73.] This constitutes
waiver of Defendants’ argument in their motion for sanctions, as previously
explained. However, because Leuzzi’s current employment, represented through
Exhibit R, is not material to this dispute, the Court will not consider it in resolving

the parties’ motions. In contrast, Exhibit L is material and, given Defendants’
admission of the relevant facts contained in in, the Court will consider it.

8 The parties’ briefs also discuss Leuzzi, who was DiFoggio’s partner in U.S. Plumbing.
[Dkt. 187 at 8; dkt. 188 at 4.] The basis of that dispute is not clear to the Court since Plaintiffs
did not support their motion for summary judgment with evidence from Leuzzi. Even if
Plaintiffs’ Rule 26 disclosures were inadequate in some way with respect to Leuzzi, any
failure to disclose is harmless because Plaintiffs’ summary judgment motion does not rely on
information from Leuzzi. Furthermore, like Atkins and Mansfield, Defendants were on notice
that their employees and directors could have information relevant to this dispute.
5. Miscellaneous Discovery Issues
Defendants’ motion for sanctions complains of other discovery issues, such as
allegedly deficient interrogatory responses and deficient document productions with

respect to the Union. The time for complaining about the sufficiency of discovery
responses has long passed. Discovery closed last September. As Plaintiffs explain,
after making their last production on August 13, 2024, Defendants never challenged
the sufficiency of the production or filed a motion to extend or reopen discovery. [Dkt.
187 at 3–4.]
Defendants admit they did not attempt to take the depositions of any of the
individuals included on Plaintiffs Rule 26 disclosures. [Dkt. 188 at 8.] They “did not

believe it necessary based on the witnesses provided and the documents produced.”
[Id.] But they offer no reason to believe that, had Plaintiff updated their disclosures
with different witnesses, their decision would have been different. As previously
explained, Plaintiffs had no obligation to do so.
There were many steps Defendants could have taken if they believed Plaintiffs’
discovery practices deprived them of the ability to mount a robust response to

Plaintiffs’ summary judgment motion. They took none of them. Instead, Defendants
waited and now attempt to use discovery complaints to argue Plaintiffs’ motion for
summary judgment should be struck in its entirety. Given the context, sanctions are
not appropriate. Defendants’ motion is denied.
B. Cross Motions for Summary Judgment
Plaintiffs bring several claims seeking the same relief: to hold Republic
responsible for contributions as a continuation of U.S. Plumbing. They seek to hold
Republic liable as U.S. Plumbing’s alter ego under ERISA (Count I), and as U.S.
Plumbing’s successor-in-interest under the CBA and under Illinois law (Count II and
III). They also bring a veil piercing claim to establish DiFoggio’s liability for

Republic’s debts.9
Before reaching Plaintiffs’ claims, though, the Court will address a few of
Defendants’ arguments in support of their own summary judgment motion because
they go to the predicate issue of the enforceability of the CBA. Defendants’ principal
argument is that the CBA was either terminated or modified through conduct to the
point of no longer necessitating compliance with its contribution requirement

provisions. [Dkt. 194 at 2–3.] They argue that the CBA was terminated when the
Welfare Fund terminated DiFoggio’s coverage in April 2019. [Dkt. 191 at ¶ 4.]
Defendants point to a copy of the termination letter DiFoggio received from the
Welfare Fund and argue that “the Union cannot accept contributions for benefits it
has no intention of providing.” [Dkt. 184 at 3.] They cite no law in support of that
argument, nor any provision of the CBA or Trust Fund agreement.
To begin, the Union and Funds are separate entities, as will be explored more

below. As a result, a letter terminating Welfare benefits is not competent evidence
that the CBA—a separate agreement entirely—has been terminated. At the
summary judgment stage it is incumbent on Defendants to do more. They must “show

9 Plaintiffs originally brought a veil piercing claim for Duarte but dropped that in
briefing the motions for summary judgment. [Dkt. 193 at 10.] Therefore, summary judgment
is entered in Defendant Duarte’s favor on that claim. Wilkinson v. Acxiom Corp., 611 F. Supp.
3d 547, 555 (N.D. Ill. 2020); Norwood v. Aurora Health Care, Inc., 2022 WL 2657133, at *4
(E.D. Wis. July 8, 2022).
what evidence [they] ha[ve] that would convince a trier of fact to accept [their] version
of events.” Wade, 26 F.4th at 446. In support of their termination argument,
Defendants come up empty.

Defendants also argue that the parties modified the CBA by not acting in
accordance with it, such as by not pursuing arbitration with Republic in accordance
with the CBA. [Id. at 4.] In support, they point to Plaintiffs’ interrogatory response
asking for “all documents relating to the status of John DiFoggio and U.S. Plumbing
within Plaintiff’s [sic] organization.” [Id. at 4.] Plaintiffs only produced the Welfare
Fund benefit cancellation letter. From that limited production, Defendants argue

that the Court can infer that the Union stopped enforcing the CBA and therefore
modified it. [Id.] They reason that if the Union had truly believed the CBA was in
force, they would have taken some steps in accordance with it, and there would be a
corresponding paper trail.
This argument is not compelling. First, “Defendant cites no cases establishing
that, despite a signed collective bargaining agreement, a union’s course of dealings
can negate the existence of such agreement.” Bd. of Trs. of Masons & Plasterers

Pension Fund Loc. 56 Dupage Cnty., IL v. O’Donnell Plastering, Inc., 2003 WL
174207, at *6 (N.D. Ill. Jan. 27, 2003). Furthermore, “misconduct or breach by the
union does not relieve the employer of its obligations to make pension contributions.”
Id. The fact that Plaintiffs didn’t wield the CBA to hold Defendants to their bargain
does not excuse Defendants’ contribution requirements.
The remainder of Defendants’ arguments will be addressed in conjunction with
Plaintiffs’ arguments in favor of summary judgment.
1. ERISA Alter Ego

If Republic is an alter ego of U.S. Plumbing it is “obligated to honor the pension
contribution terms of the [CBA].” Cent. States, Se. & Sw. Areas Pension Fund v.
Sloan, 902 F.2d 593, 596 (7th Cir. 1990). The alter ego theory reasons that if “a new
company is one and the same as the old company,” the new company violates ERISA
if it fails “to comply with the contractual obligations of the old company.” E. Cent.
Illinois Pipe Trades Health & Welfare Fund v. Prather Plumbing & Heating, Inc., 3
F.4th 954, 962 (7th Cir. 2021). In that way, alter ego liability is a form of direct

liability. Plumbers’ Pension Fund, Loc. 130, U.A. v. Pellegrini Plumbing, LLC, 2023
WL 264392, at *3 (N.D. Ill. Jan. 18, 2023). Its purpose is to “prevent an employer
from gaining an unearned advantage in his labor activities simply by altering his
corporate form.” Sloan, 902 F.2d at 596 (cleaned up). “The alter ego determination
‘focuses on the existence of a disguised continuance of a former business entity or an
attempt to avoid the obligations of a collective bargaining agreement, such as through

a sham transfer of assets.’” Teamsters Loc. Union No. 727 Health & Welfare Fund v.
De La Torre Funeral Home & Cremation Servs., Inc., 2023 WL 4664918, at *5 (N.D.
Ill. July 20, 2023) (quoting Int’l Union of Operating Eng’rs, Local 150 v. Centor
Contractors, Inc., 831 F.2d 1309, 1312 (7th Cir. 1987)).
Courts look at a variety of non-exhaustive factors to determine whether the
alter ego doctrine applies: “whether the companies have ‘substantially identical
management, business purpose, operation, equipment, customers, supervision, and
ownership.’” Id. (quoting Int’l Union of Operating Eng’rs, Local 150, AFL-CIO v.
Rabine, 161 F.3d 427, 433 (7th Cir. 1998)); NECA-IBEW Pension Tr. Fund v. Bays
Elec., Inc., 894 F. Supp. 2d 1071, 1084 (C.D. Ill. 2012). “[U]nlawful motive or intent

are critical inquiries in an alter ego analysis.” Trs. of Pension, Welfare & Vacation
Fringe Ben. Funds of IBEW Loc. 701 v. Favia Elec. Co., 995 F.2d 785, 789 (7th Cir.
1993). Courts should consider: “1) the amount of respect given to the separate identity
of the corporation by its shareholders; 2) the fraudulent intent of the incorporators;
and 3) the degree of injustice visited on the litigants by respecting the corporate
entity.” De La Torre Funeral Home & Cremation Servs., Inc., 2023 WL 4664918, at

*6 (N.D. Ill. July 20, 2023) (cleaned up). The analysis, while fact intensive, “boil[s]
down to a simple question: despite two entities’ legal separation, does the evidence
suggest they are one and the same?” McCleskey v. CWG Plastering, LLC, 897 F.3d
899, 903 (7th Cir. 2018).
In this case, Plaintiffs point to evidence that DiFoggio substantially managed
both businesses. He supervised work performed on U.S. Plumbing jobsites and was
the sole supervisor at Republic. [Dkt. 192 ¶¶ 32, 75; dkt. 191 ¶¶ 2–3.]

It is undisputed that the two businesses had the same purpose. They were both
engaged in commercial, residential, and industrial plumbing work in the same
geographic area. [Dkt. 192 ¶¶ 5–6, 43.] Both businesses used the same equipment.
They used plumbing tools owned by DiFoggio, the same Chevy cargo vans, and the
same garage space in Darien, Illinois. [Id. ¶¶ 8–9.] Both businesses were also
associated with DiFoggio’s personal address in Lemont. [Id. ¶¶ 44–46.] DiFoggio was
the legally required licensed journeyman plumber for both businesses too. [Id. ¶¶ 48.]
Because the two businesses did the same type of plumbing work, they shared

at least one customer—the Meet Me on Meachum project. DiFoggio represented
through a letter of intent that Republic had been awarded the project [Id. ¶¶ 59–63.]
However, the general contractor believed the subcontractor was U.S. Plumbing. [Id.
¶ 60.] When time came around for payment though, it was Republic that received
funds for completing that project. [Id. ¶ 64.] In that way, Republic performed a
contract U.S. Plumbing entered into with a customer.

Both businesses utilized the same registered agent and same accountant. [Id.
¶¶ 47, 66–67.] DiFoggio was the president, director, and 50% shareholder of U.S.
Plumbing. [Id. ¶¶ 7, 10.] His role is quite similar with Republic, except he has full
ownership of the business. [Id. ¶¶ 50–52, 120.] Contrary to Defendants’ argument,
DiFoggio’s partial ownership of U.S. Plumbing does not prevent application of the
alter ego doctrine. See, e.g., McCleskey, 897 F.3d at 904; Laborers’ Pension Fund v.
Innovation Landscape, Inc., 2019 WL 6699190, at *10 (N.D. Ill. Dec. 9, 2019). Courts

look beyond titles and examine evidence evincing control over the businesses.
McCleskey, 897 F.3d at 904. Further establishing continuity, Republic advertises on
its website that it has been in business for 20 years despite opening in 2019. [Id.
¶¶ 57–58.] In that way, Republic represents work done by DiFoggio under the U.S.
Plumbing brand as its own.
The final factor, intent to avoid labor obligations, is the most challenging. The
Funds point to how U.S. Plumbing used non-Union labor to continue working after
receiving a 5-day notice from the Union. [Id. ¶¶ 31–32.] Republic pays its workers

below Union wages, without health insurance or benefits. [Id. ¶¶ 76–79.] The timing
is also instructive: DiFoggio founded Republic knowing that his prior business was
being sued for owed contributions and was filing for bankruptcy. [Id. ¶¶ 40–41.] He
began working under the Republic name and, in fact, incorporated Republic, before
U.S. Plumbing filed for bankruptcy. [Id. ¶¶ 38–39, 56, 65.] The upshot is that he
owned the two businesses at the same time.

At his deposition, DiFoggio explained that he started Republic so that he could
continue owning and operating a plumbing company after “U.S. Plumbing could no
longer be in business.” [Id. ¶ 81.] He understood that U.S. Plumbing was “in a lot of
trouble.” [Id. ¶ 42.] Other than the outstanding contribution requirements and timely
payment obligations under the CBA though, neither party offers another reason why
U.S. Plumbing could not continue its business.
The desire to “start fresh without union involvement” is not evidence of anti-

Union animus or intent to avoid labor obligations. De La Torre Funeral Home &
Cremation Servs., Inc., 2023 WL 4664918, at *6. In De La Torre, the court found alter
ego liability inapplicable. There, a family-owned funeral home business, De La Torre,
was at issue. De La Torre was a Union company which entered into a settlement
agreement with Funds for unpaid contributions. Id. at *2. Some, but not all required
payments were made in accordance with the agreement. Id. After the patriarch of the
family died, De La Torre closed, and some family members opened a new business,
Logan Square Funeral Home as a non-Union business. Id. at *2-3. While the court
recognized the “many similarities between Logan Square and [De La Torre],” it found

the Funds fell short of their summary judgment burden with respect to fraudulent
intent. Id. at *6. Rosa, the matriarch of the family, expressed her desire to run a non-
Union business after the death of her husband, explaining “[her] husband had a very
bad experience with the union,” that she believed it put a “strain” on him and
“contributed to his death,” and, as a result, she “didn’t want to have anything to do
with [the Union].” Id. The Court also found that “Rosa may have believed the issue

[with De La Torre’s settlement agreement payments] was resolved.” Id. All these facts
led the court to conclude that while the timing of Rosa opening Logan Square could
be perceived as suspicious, the Funds failed to establish fraudulent intent beyond
dispute. Id.
Courts often apply the doctrine where there is evidence that avoiding “Union
costs w[as] a motivating factor” in the decision to close to old business and open the
new one. Trs. of the Chicago Painters & Decorators Pension Fund v. John Kny

Painting & Decorating, Inc., 188 F. Supp. 3d 760, 775 (N.D. Ill. 2016). In a similar
vein, several courts have found statements expressing the infeasibility of continued
business operations to be evidence of anti-Union animus where, besides the CBA
obligations, there was no evidence the business was in distress. That was true in
Sloan where, within months of executing CBA, the business owner decided “he
couldn’t stay in business under the contract” because it “prevented him from being
able to make competitive bids for residential work.” 902 F.2d at 595. After his efforts
to cancel the CBA were unsuccessful, he had his wife create a new non-Union entity.
Id. While he argued his motivation was to save his business, he cited only his

“company’s union obligations as the reason” why his business was struggling. Id.
Similar facts led to the same conclusion in Innovation Landscape. The Court found
evidence of intent to avoid collective bargaining obligations where the business owner
opened a new business because the prior business was “having problems” but “[t]he
only problems alleged [were] the funds’ lawsuits.” 2019 WL 6699190, at *8. The owner
also “blamed the union for [the business’s] closure, stating that ‘the Union went really

dirty on [him].’” Id.
In contrast, the Seventh Circuit held the alter ego analysis inapplicable where
a non-Union company terminated its affiliation with a Union company, through
which contributions had been made for work performed by the non-Union company.
Trs. of Pension, Welfare & Vacation Fringe Ben. Funds of IBEW Loc. 701 v. Favia
Elec. Co., 995 F.2d 785, 786-87 (7th Cir. 1993). Because the non-Union company’s
“decision to terminate the relationship was motivated by valid business concerns,”

not to avoid the obligation to contribution to fringe benefit funds, the Court found it
was not an alter ego of the Union company. Id. at 789.
With this guidance in mind, the Court concludes that a reasonable fact finder
could find the alter ego doctrine inapplicable. Though a close call, the evidence shows
DiFoggio believed continuing U.S. Plumbing was impossible and the only barrier was
the company’s Union obligations. Unlike the defendant in Innovation Landscape,
however, DiFoggio did not say anything overtly negative about the Union; he didn’t
explicitly blame the Union for the closure of U.S. Plumbing. See also Boards of Trs.
of Bricklayers Loc. 74 Fringe Ben. Funds v. Michael J. Vorkapic, Inc., 2001 WL

649501, at *5 (N.D. Ill. June 8, 2001) (considering defendant’s statement that he had
“nothing but … trouble” with the Union as evidence in favor of applying alter ego
doctrine). Further, DiFoggio didn’t explicitly connect the infeasibility of U.S.
Plumbing’s continued operations with its Union obligations. See John Kny Painting
& Decorating, Inc., 188 F. Supp. 3d at 775 (where defendant explicitly connected
closure of business with “Union costs”). Unlike the defendant in Sloan, DiFoggio did

not seek to terminate the CBA or admit that cancelling the contract was the only way
to stay in business. 902 F.2d at 595. While perhaps a fair inference, it is not the only
reasonable conclusion one might reach. As Defendants note, DiFoggio is repaying,
albeit slowly and through an installment plan, a settlement related to U.S.
Plumbing’s failure to pay contributions for a certain period of time. Similar to Rosa
in De La Torre, it’s possible a fact finder could conclude DiFoggio believed his
obligation was satisfied and he was free to proceed with running a non-Union

plumbing company. 2023 WL 4664918, at *6.
Ultimately, questions of fact linger, making summary judgment inappropriate
on Plaintiffs’ alter ego theory of liability.
2. Successor in Interest
Plaintiffs bring two styles of successor claims seeking to hold Republic liable
as the successor in interest to U.S. Plumbing. The first claim, Count II, argues that
Republic “is liable as the ‘successor’ [of U.S. Plumbing] within the meaning of the
collective bargaining agreement.” Pellegrini Plumbing, LLC, 2023 WL 264392, at *4.
The second successor claim, Count III, arises under Illinois state law.
i. CBA Successor Claim

“LMRA § 301 vests the district courts with concurrent authority to entertain
suits for violation of contracts between an employer and a labor organization
representing employees in an industry affecting commerce.” RiverStone Grp., Inc. v.
Midwest Operating Eng’rs Fringe Benefit Funds, 33 F.4th 424, 430 (7th Cir. 2022)
(cleaned up). As “third-party beneficiaries of the [CBA],” “trust fund beneficiaries can
sue under Section 301” for damages. Id. at 427 n.8.
Normally, “[t]o succeed on a section 301 claim, a plaintiff must allege that he

exhausted the relevant grievance procedures before filing suit in federal court.” Wince
v. CBRE, Inc., 66 F.4th 1033, 1039 (7th Cir. 2023). However, “the presumption of
arbitrability” does not extend to “whether arbitration agreements between the union
and the employer apply to disputes between [funds] and employers.” Schneider
Moving & Storage Co. v. Robbins, 466 U.S. 364, 372 (1984). Instead, “courts must
carefully examine the pertinent trust and collective bargaining agreements to

determine whether [the] parties intended to arbitrate disputes between trust funds
and employers.” Pipe Fitters’ Welfare Fund, Loc. Union 597 v. Mosbeck Indus. Equip.,
Inc., 856 F.2d 837, 840 (7th Cir. 1988).
The dispute resolution section of the CBA in this case provides that “[t]he
parties hereto agree that all arbitrable disputes arising between them shall be
submitted to a Joint Arbitration Board.” [Dkt. 180-4 at 14.] It also provides that “[i]n
the event of an alleged contract violation” a Union representative “will notify the
Employer … and attempt to resolve the matter informally”; otherwise, unresolved
matters will be sent to the Union’s Joint Arbitration Board. [Id. at 15.] Nowhere does
the agreement indicate that Funds have “[]either the duty []or the right to exhaust

grievance and arbitration procedures before filing [suit].” Trs. of NECA-IBEW
Pension Ben. Tr. Fund v. Springman, 2008 WL 360833, at *4 (S.D. Ill. Feb. 8, 2008).
In fact, as Plaintiffs note, the CBA excludes coverage of disputes surrounding fringe
benefits. [Dkt. 193 at 4, fn.2.] With respect to amounts found owed following fringe
benefit audits, the CBA explains those “shall be determined by the audit and
collection policy of the Fringe Benefit Funds.” [Dkt. 180-2 at 23, § 3.3.]

Courts will typically review the Funds’ trust agreements as well to determine
if any intent to arbitrate can be derived. Mosbeck Indus. Equip., Inc., 856 F.2d at 840.
While Plaintiffs attach a copy of a 2017 trust agreement to their opposition to
Defendants’ motion for summary judgment, neither party directs the Court to any
provision cutting one way or the other on the exhaustion issue. [Dkt. 189-1 at 62–
192.] It’s not the Court’s job to scour the documents on Defendants’ behalf for evidence
of Funds’ ability or duty to exhaust claims using the Union’s grievance procedures.

Lane v. Structural Iron Workers Local No. 1 Pension Trust Fund, 74 F.4th 445, 452–
53 (7th Cir. 2023) (litigants are “best positioned and best motivated to provide more
information in support of [their] claim.”) Exhaustion is an affirmative defense on
which Defendants bear the burden. St. Alexius Med. Ctr. v. Roofers’ Unions Welfare
Tr. Fund, 2017 WL 465476, at *10 (N.D. Ill. Jan. 31, 2017); Hess v. Reg-Ellen Mach.
Tool Corp. Emp. Stock Ownership Plan, 502 F.3d 725, 730 (7th Cir. 2007). They must
live with the result of their decision not to cite and rely on the Funds’ trust
agreements.
As Defendants repeatedly emphasize, however, the Union is also a Plaintiff in

this action. Inclusion of the Union seems to have been a clerical error. [Dkt. 189 at
16, fn.2.] Funds, not Unions, are “the real parties in interest” in contribution cases
like this one. Line Constr. Benefit Fund v. Asomeo Env’t Restoration Indus., LLC, 688
F. Supp. 3d 727, 735 (N.D. Ill. 2023) (collecting cases). Unions aren’t necessary parties
to contribution cases. Id. The relief sought would flow to the Funds in the form of
owed and unpaid contributions, not to the Union. Id. Still, Defendants argue that the

Union was obligated to exhaust its claims against Plaintiffs using the procedures set
forth in the CBA. Sidestepping the question of what claims the Union has that it
could attempt to exhaust, the Court agrees that as a general matter, exhaustion is
required. Plaintiffs don’t convincingly argue otherwise or point the Court to cases in
support. Instead, they argue that “Republic cannot simultaneously assert that it was
never bound to the Local 130 CBA, and then argue that if Plaintiffs were to act
against it, it could only be through the CBA’s internal mechanisms.” [Dkt. 193 at 4.]

But the Court views Defendants’ argument differently. They argue that the Union
shouldn’t be able to demand compliance with the CBA while not following its
exhaustion provisions. That point is well taken.
Exhaustion is excused if attempting to pursue arbitration through the CBA
would be futile. Marine v. H.J. Mohr & Sons, Co., 2005 WL 2293673, at *10 (N.D. Ill.
Sept. 19, 2005); Stark v. PPM Am., Inc., 354 F.3d 666, 671 (7th Cir. 2004); Springman,
2009 WL 1089549, at *8. The Springman court found exhaustion excused because
there was evidence that the defendant company had manifested its intent not to
comply with CBA requirements. Id. In that case there was significant evidence that

it failed to file reports, pay contributions or dues, and created “serial business entities
to avoid paying contributions.” Id. While this case is, in some respects, similar,
Plaintiffs have failed to muster a compelling argument of futility. In fact, they don’t
make that argument at all.
Since the CBA expressly demands exhaustion with respect to disputes between
the Union and employer and there is insufficient evidence of futility, the Court

concludes that any potential claims the Union may have had with respect to
contributions cannot proceed because it failed to exhaust. Summary judgment must
be granted to Plaintiff on any Union claims.
Having decided that the Funds had no obligation to exhaust, the Court turns
to the portion of the CBA that, Plaintiffs contend, binds Republic as U.S. Plumbing’s
successor. Section 14.1 of the CBA between U.S. Plumbing and the Union provides:
This Agreement is binding upon the Employer regardless of whether he
or it changes the name or address or his or its business and upon any
other business entity within the trade and territorial jurisdiction of the
Union which is owned, managed, controlled and/or operated by the
Employer or its principals or any of them.
[Dkt. 180-4 at 45.]
In their brief, Plaintiffs walk through the elements of a breach of contract claim
under Illinois law without discussing whether or why Illinois state law would provide
the proper framework for a federal claim. [Dkt. 181 at 11–12.] Furthermore, they
discuss whether there was a valid and enforceable CBA between the Union and U.S.
Plumbing. [Id.] Defendants make the same argument that there is no valid and
enforceable contract [Dkt. 184 at 5, dkt. 190 at 10.]
But U.S. Plumbing’s contribution obligations under the CBA was established

in the predecessor case. [Plumbers Pension Fund, Local 130, U.A. v. U.S. Plumbing
& Sewer, Inc. et al., 18-cv-5277, Judgment in Civil Case, Dkt. 39. (October 25, 2019).]
DiFoggio admitted liability for contribution arrearages owed by U.S. Plumbing. [Id.,
compare dkt. 19 ¶¶ 10-11 with dkt. 31 ¶¶ 10–11 (admitting breach of CBA by U.S.
Plumbing).] Defendants agreed that DiFoggio was on the hook, as the employer, to
pay amounts U.S. Plumbing owed for contributions under the CBA. [Id., dkt. 38.]

Defendants also admit as much in this case, arguing in their reply brief that the
$74,000 judgment against DiFoggio “was the total owed by U.S. Plumbing” for
contributions. [Dkt. 194 at 2.] In other words, Defendants admitted the CBA was
enforceable by agreeing to pay sums owed under it, even if they disputed U.S.
Plumbing’s responsibility to pay, as opposed to DiFoggio’s, as a guarantor. The
Seventh Circuit has instructed lower courts, particularly where “a case is transferred
between district judges midway through litigation” not to “reconsider[] rulings made

by the original judge.” Flynn v. FCA US LLC, 39 F.4th 946, 953 (7th Cir. 2022).
Adhering to that rule makes good sense especially in this case.
Even looking past Defendants’ admission though, and as explained above,
their termination and modification arguments are not persuasive. Defendants’
additional argument that Plaintiffs failed to substantially perform under the CBA is
a nonstarter for the same reason. O’Donnell Plastering, Inc., 2003 WL 174207, at *6
(N.D. Ill. Jan. 27, 2003) (explaining that the Union’s breach of the CBA “does not
relief the employer of its obligations to make pension contributions”). Not to mention,
Plaintiffs presented evidence of substantial performance: while U.S. Plumbing was

in good standing, the Union provided workers for U.S. Plumbing jobs. [Dkt. 192 ¶ 27–
32.]
Whether Republic is bound to the CBA through operation of Section 14.1 is an
issue of contract interpretation. M & G Polymers USA, LLC v. Tackett, 574 U.S. 427,
435 (2015); Int’l Union v. ZF Boge Elastmetall LLC, 649 F.3d 641, 646 (7th Cir. 2011)
(“We approach our interpretive task in the collective bargaining agreement context

in the same way we approach other contracts.” (citation and internal quotation marks
omitted)). Contract interpretation is a question of law. ZF Boge, 649 F.3d at 646.
Here, the contract’s meaning is plain and unambiguous so “there is no resort to
extrinsic evidence, [and] no factual dispute to preclude summary judgment.” Id.
The CBA binds not only the signatory employer, U.S. Plumbing, but “any other
business entity within the trade and territorial jurisdiction of the Union which is
owned … by the Employer or its principals.” [Dkt. 180-4 at 45.] The parties agree that

Republic is a “business entity within the trade and territorial jurisdiction of the
Union.” [Dkt. 192 ¶ 49.] DiFoggio was a “principal” of U.S. Plumbing by virtue of
being a 50% owner, president, and director. [Dkt. 192 ¶¶ 7, 10.]. Principal, as a matter
of both common knowledge and dictionary definition, means “a person who has
controlling authority or is in a leading position.” Principal, Merriam-Webster,
https://www.merriam-webster.com/dictionary/principal#dictionary-entry-2 (last
visited May 29, 2025). It is undisputed that DiFoggio is the owner of Republic.
Consequently, the plain meaning of Section 14.1 of the CBA establishes that Republic
is bound by the terms of the CBA.

ii. Illinois State Law Successor Claim
Count III of Plaintiffs’ complaint is a successorship claim under Illinois law.
Through this cause of action, Plaintiffs seek to hold Republic liable for the debts of
U.S. Plumbing. [Dkt. 181 at 14.] While in briefing the parties dispute the applicability
of several common law factors, they do not address the bigger issue: preemption.
“Common law successor liability rules do not apply to … ERISA claims,”
Plumbers’ Pension Fund, Loc. 130, U.A. v. Republic Piping Sys., Inc., 2020 WL

4437846, at *2 (N.D. Ill. Aug. 3, 2020). That is because “state law … successor
liability, which cuts off the obligation to pay a predecessor’s promised contributions,
significantly conflicts with” the significant federal interest in “minimiz[ing]
contribution losses.” Moriarty v. Svec, 164 F.3d 323, 329 (7th Cir. 1998).
Instead, federal successor law applies to ERISA cases. Id. Courts apply the two
factors from Upholsterers’ International Union Pension Fund v. Artistic Furniture of

Pontiac, 920 F.2d 1323, 1329 (7th Cir. 1990). “[T]o hold a successor liable, [the Court]
must find that there exist sufficient indicia of continuity between the two companies.”
Id. Second, the successor must have “had notice of its predecessor’s liability.” Id.; see
also Prather Plumbing & Heating, Inc., 3 F.4th at 956; Indiana Elec. Workers Pension
Benefit Fund v. ManWeb Servs., Inc., 884 F.3d 770, 777 (7th Cir. 2018).
Because Plaintiffs’ Illinois state law successor claim is preempted by federal
common law in the ERISA context, the Court grants judgment in favor of the
Defendants on Claim III. See e.g., Vesely v. Cont’l Cas. Co., 101 F. Supp. 2d 1054, 1055
(N.D. Ill. 2000) (granting judgment on preempted claim).
3. Piercing Corporate Veil

Count IV seeks to pierce the corporate veil and hold DiFoggio liable for any
judgment against Republic. [Dkt. 181 at 15.] Since summary judgment is proper for
Plaintiffs on their § 301 contract interpretation claim, the Court considers whether
DiFoggio is on the hook for debts owed by Republic.
Normally, “[c]orporations exist separately from their owners” and, as a result,
“owners typically are not responsible for the liabilities of the corporation.” Plumbers’
Pension Fund Loc. v. Only Plumbing 2, Inc., 2022 WL 17668607, at *4 (N.D. Ill. Dec.

14, 2022) (cleaned up). Courts “pierce the corporate veil” where “an individual or
entity uses the corporation merely as an instrumentality to conduct that person’s or
entity’s business.” Laborers’ Pension Fund v. Lay-Com, Inc., 580 F.3d 602, 610 (7th
Cir. 2009). “The point is to prevent those who disregard the corporate form from then
relying on it to avoid liability for their wrongdoing.” Id.
“Courts may pierce the corporate veil … where the corporation is so organized

and controlled by another entity that maintaining the fiction of separate identities
would sanction a fraud or promote injustice.” Only Plumbing 2, Inc., 2022 WL
17668607, at *4 (citation omitted). Illinois courts pierce the corporate veil when two
factors are met: “(1) there is such a unity of interest and ownership that the separate
personalities of the corporation and the parties who compose it no longer exist, and
(2) circumstances are such that adherence to the fiction of a separate corporation
would promote injustice or inequitable circumstances.” Buckley v. Abuzir, 2014 IL
App (1st) 130469, ¶ 13.
i. Unity of Interest and Ownership

Courts consider a variety of factors when determining whether there is a unity
of interest. They include
(1) inadequate capitalization; (2) failure to issue stock; (3) failure to
observe corporate formalities; (4) nonpayment of dividends; (5)
insolvency of the debtor corporation; (6) nonfunctioning of the other
officers or directors; (7) absence of corporate records; (8) commingling of
funds; (9) diversion of assets from the corporation by or to a stockholder
or other person or entity to the detriment of creditors; (10) failure to
maintain arm’s-length relationships among related entities; and (11)
whether, in fact, the corporation is a mere façade for the operation of the
dominant stockholders.
Only Plumbing 2, Inc., 2022 WL 17668607, at *5.
By and large, these factors weigh in favor of piercing the corporate veil. The
evidence shows Republic doesn’t observe any corporate formalities, never had an
annual meeting, kept a corporate book, or paid dividends. [Dkt. 192 ¶¶ 121–124.]
There is no evidence of other officers or directors; DiFoggio is “pretty much in charge
of everything” at Republic. [Id. ¶ 50–52, 120.] DiFoggio treats Republic’s funds as his
own, drawing from Republic’s accounts to pay for numerous personal expenses. [Id.
¶ 93–113.] He does not draw a salary from Republic. [Id. ¶ 92.] He also added his
girlfriend, Duarte as a co-signor on Republic’s account as collateral for a personal loan
she made to DiFoggio. [Id. ¶ 87–88.] As the court noted in Only Plumbing 2, Inc., “the
money sloshed back and forth as if everything was in one big pot.” 2022 WL 17668607,
at *6.
Other factors map less neatly onto this scenario. For example, inadequate
capitalization. While DiFoggio’s paid-in capital to Republic was just $1, the first
deposit into Republic’s account was $10,000, coming primarily in the form of a loan

from DiFoggio’s aunt. [Dkt. 192 ¶¶ 115–16.] This amount does not suggest that
Republic “has so little money that it cannot operate its business on its own.” Lay-
Com, Inc., 580 F.3d at 612. What is unclear though is whether that money was a loan
for the business or for DiFoggio personally. DiFoggio admitted he “needed to obtain
the loan from his aunt because, at the time, he was barely surviving, and didn’t have
money for his mortgage.” [Dkt. 192 ¶ 117.] Regardless, the fact that DiFoggio’s

personal bank account had $200 [id. ¶ 83] and given his use of Republic’s account to
pay for a vast number of personal expenses [id. ¶ 93–113], the evidence shows a high
level of financial intermingling. From any vantage point, there is “a unity of interest.”
Plumbing 2, Inc., 2022 WL 17668607, at *7.
DiFoggio’s response brief cops to the substantial overlap between himself and
Republic. Seeming to ignore the bedrock principal that even owners of solely owned
corporations are “typically are not responsible for the liabilities of the corporation,”

id. at *4, DiFoggio argues that, as sole owner of Republic he “would ultimately be the
party paying the judgment,” [dkt. 190 at 13]. In so doing, he seems to admit that there
is no real distinction between himself and his company. That fact is confirmed by
Plaintiffs’ evidence which, by and large, Defendants do not challenge.
ii. Injustice or inequitable circumstances
Under the second factor, courts “must determine whether the circumstances
are such that adherence to the fiction of a separate corporation would promote
injustice or inequitable circumstances.” Buckley, 2014 IL App (1st) 130469, ¶ 34.
While “the rule … is not clearcut,” Lay-Com, Inc., 580 F.3d at 611, “this prong
requires something less than an affirmative showing of fraud, but something more

than the mere prospect of an unsatisfied judgment,” Wachovia Sec., LLC v. Banco
Panamericano, Inc., 674 F.3d 743, 756 (7th Cir. 2012) (cleaned up). “The Seventh
Circuit has observed that the corporate veil has been pierced to, among other things,
prevent unfair enrichment …; keep a party from escaping responsibility or ignoring
obligations …; and prevent manipulation of corporations to the benefit of one and the
detriment of another.” In re Tolomeo, 537 B.R. 869, 879 (Bankr. N.D. Ill. 2015),

adopted sub nom. In re: Tolomeo, 2015 WL 8741730 (N.D. Ill. Dec. 15, 2015)
Cases like Wachovia Securities and Lay-Com conduct veil piercing analyses to
untangle more complex corporate arrangements, where one corporation is used to
plunder the assets of another. Wachovia Securities, 674 F.3d at 753. By contrast,
Republic’s simple corporate form lends itself to a simple unjust enrichment analysis.
Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 381 n.1
(7th Cir. 2008). “[T]he uncontested facts establish that” DiFoggio and Republic

“operated as a single economic unit with a single economic identity.” In re Tolomeo,
537 B.R. at 879.
Not piercing the corporate veil would allow for DiFoggio to “leave [Republic]
holding the bag” and avoid the responsibility to pay contributions in accordance with
the CBA. Wachovia Sec., LLC, 674 F.3d at 753. Under the circumstances present in
this case, it would be inequitable to permit DiFoggio, by creating Republic, to dodge
Republic’s responsibilities under the CBA. See Int’l Union of Operating Eng’rs, Loc.
150, AFL-CIO v. Centor Contractors, Inc., 831 F.2d 1309, 1314 (7th Cir. 1987)
(discussing in context of alter ego analysis that “[f]ederal labor policy cannot tolerate

such easy avoidance of collective bargaining obligations.”); see also In re Tolomeo, 537
B.R. at 879 (“Failure to pierce the corporate veil under the circumstances here would
allow the Debtor to shield assets…”).
In briefing DiFoggio argues that, regardless of any veil piercing, he’s on the
hook for any judgments on Republic. If that was true, any injustice would be minimal;
he wouldn’t be unjustly enriched. In actuality, absent veil piercing there’s no legal

responsibility for DiFoggio to step up to pay Republic’s debts. Republic’s corporate
form could be used as a shield to deflect liabilities caused by DiFoggio’s management.
Wachovia Sec., LLC, 674 F.3d at 753. DiFoggio’s statement to the contrary in briefing
isn’t a judgment Plaintiffs can enforce. Veil piercing is appropriate in this case.
IV. Conclusion
For the reasons stated above, Plaintiffs’ Motion for Summary Judgment [dkt.
179] is granted in part and denied in part. Defendants’ Motion for Summary
Judgment [dkt. 182] is also granted in part and denied in part. Plaintiffs’ motion is
granted with the exception of (1) claims brought by the Union, (2) Plaintiffs’ alter ego
theory of relief, (3) their Illinois state law successor claim, and (3) their claims against
Duarte. Defendants’ motion is granted with respect to (1) the Union’s claims, (2)
Plaintiffs’ state law successor in interest claim, and (3) Plaintiffs’ claims against
Duarte. It is denied in all other respects. Defendants’ motion for sanctions [dkt. 185]
is also denied.

Enter: 20 CV 774 (a
Date: May 30, 2025
Lindsay. Jenkins □□□

38

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11062923. Public record. Not legal advice.