United States District Court, W.D. Wisconsin
BUILDING TRADES UNITED PENSION TRUST FUND, SCOTT J. REDMAN, WISCONSIN LABORERS HEALTH FUND, WISCONSIN LABORERS APPRENTICESHIP & TRAINING FUND, WISCONSIN LABORERS DRUG FUND, BUILDING AND PUBLIC WORKS VACATION FUND, JOHN J. SCHMITT, WISCONSIN LABORERS-EMPLOYERS COOPERATION AND EDUCATION TRUST FUND, and WISCONSIN LABORERS DISTRICT COUNCIL, Plaintiffs,
IVERSON CONSTRUCTION, LLC, LARRY IVERSON, and RICHARD IVERSON, Defendants.
OPINION AND ORDER
D. PETERSON District Judge
are a labor union, several employee benefits funds affiliated
with the union, and two trustees of those benefits funds.
Plaintiffs say that defendant Iverson Construction, LLC,
failed to make required contributions to the benefits funds
and withheld union dues without actually giving the money to
the union. Dkt. 1. Plaintiffs say that defendants Larry
Iverson and Ricard Iverson, who oversaw payroll for the
company, pocketed the union dues and are individually liable
for common law conversion and civil theft under Wisconsin
Statute §§ 895.446 and 943.20.
filed their complaint on November 28, 2018. Only Larry
Iverson filed a timely answer. Dkt. 7. Iverson Construction
did not respond at all, and the clerk's office entered
default against it on January 22, 2019. Dkt. 17.
before the court are Richard Iverson's motion for
extension of time to file his answer, Dkt. 22, (along with a
proposed answer, Dkt. 24) and plaintiffs' motion to
strike Richard Iverson's answer as untimely, Dkt. 26. The
court will grant Richard Iverson's motion and deny
plaintiffs' motion. To avoid prejudice to plaintiffs, the
court will also extend the deadline to file dispositive
motions to October 30, 2019.
Iverson asks the court to accept his belated filing under
Federal Rule of Civil Procedure 6(b)(1)(B), which permits
extension of deadlines for good cause if a party failed to
act because of “excusable neglect.” The court has
discretion to decide whether a party's neglect is
“excusable, ” Glob. Tech. & Trading, Inc.
v. Tech Mahindra Ltd., 789 F.3d 730, 732 (7th Cir.
2015), and “the determination is at bottom an equitable
one, taking account of all relevant circumstances surrounding
the party's [error].” Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395
Iverson says that the delay was caused by a misunderstanding
regarding the complaint. Iverson Construction is being sued
in three separate cases. Although Richard Iverson previously
managed Iverson Construction, all three cases were filed
after he gave control of the company to his son, Larry
Iverson. Richard Iverson is 78 years old and no longer
involved in the day-to-day operations of the company, and
when he received plaintiffs' complaint, he mistook it as
a filing in one of the other two lawsuits. He thought that no
further action was necessary and forwarded the complaint to
Iverson Construction's office. When he later discovered
that he had been named as an individual defendant in this
case, his lawyer filed an answer.
say that Richard Iverson's mistake was inexcusable
because he should have, at a minimum, read the complaint and
discovered that he was named as a defendant before he passed
it on. But Richard Iverson is not a lawyer. And the fact that
the company is involved in multiple lawsuits makes
Iverson's mistake more understandable. Accepting Richard
Iverson's answer will not unduly prejudice plaintiffs.
Even if the court were to grant plaintiffs' motion to
strike and enter default judgment, plaintiffs would still
need to provide evidence of damages, including any grounds
for awarding punitive damages against Richard Iverson.
See In re Catt, 368 F.3d 789, 793 (7th Cir. 2004).
And although plaintiffs were unable to conduct discovery with
Richard Iverson for four months, they were able to
conduct discovery with his codefendant, Larry Iverson, and
much of what they obtained in discovery should be applicable
to both defendants.
avoid the possibility of prejudice due to Richard
Iverson's delay, the court will extend the dispositive
motions deadline to October 30, 2019. If discovery proves to
be more complicated than anticipated, and plaintiffs need
further extensions, they may move for an extension closer to
Defendant Richard Iverson's motion for an extension of
time to file answer, Dkt. 22, is GRANTED.
Plaintiffs' motion to strike Richard Iverson's