Second Circuit Affirms Summary Judgment Against Employer Who Ignored Discovery and Failed to Pay Fringe Benefits

In Cement & Concrete Workers Dist. Council Welfare Fund v. Manny P. Concrete Co., No. 23-1030, —F.4th—-, 2025 WL 2025495 (2d Cir. July 21, 2025), the Second Circuit affirmed a district court’s grant of summary judgment in favor of a group of ERISA benefit plans and their fiduciary against an employer who failed to comply with discovery obligations and underpaid required fringe benefit contributions under a collective bargaining agreement (CBA).

The plaintiffs, a group of jointly administered, multi-employer ERISA trust funds, along with the union and fiduciary Margaret Bowen, filed suit against Manny P Concrete Co. and a related entity, Manny P Con Industries, for failing to remit fringe benefit contributions and dues checkoffs as required by their CBA with the Cement and Concrete Workers District Council. An audit conducted by the Funds revealed a delinquency totaling over $694,000 for the period between March 2015 and December 2018.

Despite being served with interrogatories, document requests, and requests for admissions, the defendants chronically failed to respond on time, or at all. The district court sanctioned the defendants, precluding them from using any unproduced documents, and later deemed the requests for admissions admitted. Based on those admissions and uncontested audit findings, the court granted summary judgment in favor of the Funds.

On appeal, the defendants argued that they should not have been deemed to have admitted the contents of the Requests for Admissions, particularly because some of the requests allegedly sought legal conclusions. They also contended that a factual dispute remained as to whether five employees (the “Disputed Workers”) had actually performed “Covered Work” under the CBA, which would trigger contribution obligations.

The Second Circuit flatly rejected both arguments.

First, the court upheld the district court’s treatment of the unanswered Requests for Admissions as binding admissions under Federal Rule of Civil Procedure 36. The court emphasized that Rule 36 expressly permits requests relating to “the application of law to fact,” and found that the requests were largely factual in nature. The defendants’ argument that illness of prior counsel excused the delay was unavailing, especially since new counsel had taken over well before discovery closed. The district court acted well within its discretion in refusing to permit withdrawal of the admissions.

Second, the court agreed there were no genuine disputes of material fact that would preclude summary judgment. The audit’s inclusion of the Disputed Workers was proper because, due to the unanswered admissions, the defendants had effectively conceded those individuals performed covered work. Defendants’ attempts to dispute this with post-hoc declarations and payroll documents failed to raise a triable issue. As the court explained, Rule 36 admissions are conclusive and cannot be undone with contradictory evidence at the summary judgment stage.

This case serves as a cautionary tale for employers and their counsel in ERISA litigation. Failure to timely respond to discovery requests—particularly Requests for Admissions—can result in severe consequences, including conclusive findings that effectively decide the case. Moreover, employers who do not maintain clear records or who fail to participate diligently in litigation risk significant monetary judgments and preclusion from presenting defenses.